Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R

[2016] NSWCCA 202

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202

Hearing dates:

3 August 2016

Decision date:

21 September 2016

Before:

Beazley P at [1];
R A Hulme J at [3];
Adamson J at [16]

Decision:

In respect of Mr Popovic, Mr Koloamatangi, Mr Bubanja and Mr Hristovski:

 

(1)   Grant leave to appeal.
(2)   Allow the appeal.
(3)   Quash the conviction.

 

In respect of Mr Popovic and Mr Koloamatangi:

 

(4)   Order that there be a retrial.

 

In respect of Mr Hristovski and Mr Bubanja:

 (5)   Enter verdicts of acquittal.

Catchwords:

CRIMINAL LAW – conviction appeal – four applicants convicted by jury of murder – whether trial judge erred by failing to give a direction in accordance with Shepherd v The Queen (1990) 170 CLR 573 – Shepherd direction not required

 

CRIMINAL LAW – conviction appeal – function and duty of trial judge in summing up – whether misdirection about hearsay evidence – warning was erroneous and did not correspond to request – adequacy of warnings regarding unreliable evidence under Evidence Act 1995 (NSW), s 165 – whether trial judge erred by inviting jury to consider reason why Crown witness would lie – question diminished effect of warnings about unreliability of evidence – whether summing up unbalanced – applicants denied a fair trial – leave to appeal granted – appeal allowed – convictions quashed – retrial ordered for two applicants

  CRIMINAL LAW – conviction appeal – unreasonable verdicts – guilty verdicts against two applicants were unreasonable having regard to evidence at trial – verdicts of acquittal entered

Legislation Cited:

Criminal Appeal Act 1912 (NSW), s 6
Evidence Act 1995 (NSW), ss 60, 165

Cases Cited:

Adam v The Queen [2001] HCA 57; 207 CLR 96
B v The Queen (1992) 175 CLR 599
Browne v Dunn (1983) 6 R 67
Burrell v The Queen [2009] NSWCCA 163; 196 A Crim R 199
Cesan v The Queen [2008] HCA 52; 236 CLR 358
Demirok v The Queen (1977) 137 CLR 20
DPP v Ramlagun [2014] VSCA 68
Filippou v The Queen [2015] HCA 29; 256 CLR 47
Huynh v The Queen [2013] HCA 6; 87 ALJR 434
Kanaan v R [2006] NSWCCA 109
M v The Queen (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
Onassis & Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403
Palmer v The Queen (1998) 193 CLR 1
R v Birks (1990) 19 NSWLR 677
R v Davidson [2009] NSWCCA 150; 75 NSWLR 150
R v Jovanovic (1997) 42 NSWLR 520
R v Masters (1992) 26 NSWLR 450
R v Meher [2004] NSWCCA 355
R v Ortega-Farfan [2011] QCA 364; 215 A Crim R 251
R v Rose [2002] NSWCCA 455; 55 NSWLR 701
R v Salama [1999] NSWCCA 105
R v Towle (1954) 72 WN 338
Restricted Judgment [2016] NSWCCA 44
RPS v The Queen [2000] HCA 3; 199 CLR 620
Shepherd v The Queen (1990) 170 CLR 573
SKA v The Queen [2011] HCA 13; 243 CLR 400
South v R [2007] NSWCCA 117
Tsigos (1965) 36 ALJR 76
Weiss v The Queen [2005] HCA 81; 224 CLR 300

Category:

Principal judgment

Parties:

Zlatan Popovic (Appellant)
Tevi Koloamatangi (Appellant)
Dalibor Bubanja (Appellant)
Jason Hristovski (Appellant)
Regina (Respondent)

Representation:

Counsel:
G Craddock SC (Appellant Popovic)
T Gartelmann SC (Appellant Koloamatangi)
T Game SC / P Lange (Appellant Bubanja)
B Rigg SC (Appellant Hristovski)
N Adams (Crown)

  Solicitors:
Toomey Criminal Defence Lawyers (Appellant Popovic)
Katsoolis & Co (Appellant Koloamatangi)
Hanna Legal (Appellant Bubanja)
Legal Aid Commission (Appellant Hristovski)
Solicitor for the Director of Public Prosecutions (Crown)

File Number(s):

2012/2325652012/3704712012/3624992012/354435

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

[2014] NSWSC 1725

Date of Decision:

12 December 2014

Before:

R S Hulme AJ

File Number(s):

2012/232565; 2012/354435; 2012/362499; 2012/370471

HEADNOTE

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

On 8 September 2007, Dragan Sekuljica was fatally shot as he was leaving Splashes night club in Wollongong. On 24 May 2014, the applicants, Zlatan Popovic, Jason Hristovski, Dalibor Bubanja and Tevi Koloamatangi, were convicted of his murder.

The Crown case was that the applicants were each a party to a joint criminal enterprise to kill Mr Sekuljica. According to the Crown, Mr Koloamatangi was the gunman, Mr Popovic had arranged the murder, Mr Hristovski had supplied the gun and Mr Bubanja had acted as the lookout at Splashes on the night of the murder. The principal Crown witnesses were Mr Taylor and Mr Radz, who had both been given indemnities in return for giving evidence at the trial.

The applicants sought leave to appeal against their convictions. Additionally, Mr Bubanja sought leave to appeal against his sentence.

The applicants’ grounds of appeal raised the following issues:

(i)   Whether the trial judge should have given a direction in accordance with Shepherd v The Queen (1990) 170 CLR 573 regarding the provision of a firearm in the case against Mr Hristovski;

(ii)   Whether the trial judge’s warnings to the jury regarding the evidence of Mr Taylor and Mr Radz were adequate and whether the trial judge erred by giving a hearsay warning to the jury in relation to a note made by Detective Ritchie;

(iii)   Whether the trial judge erred in inviting the jury to consider whether Mr Taylor had a reason to lie;

(iv)   Whether the summing up was so imbalanced against the applicants as to deprive each of them of a fair trial; and

(v)   Whether the verdicts against Mr Bubanja and Mr Hristovski were unreasonable.

The Court held, granting leave to appeal, allowing the appeal and quashing the convictions:

In relation to (i):

(1)   The trial judge did not err in refusing to give a direction that in order to convict Mr Hristovski, the jury needed to be satisfied beyond reasonable doubt that he provided a firearm to the shooter. The directions in respect of the burden and standard of proof were in any case sufficient: [1] (Beazley P); [4] (R A Hulme J); [199]-[201] (Adamson J)

Shepherd v The Queen (1990) 170 CLR 573; Filippou v The Queen [2015] HCA 29; 256 CLR 47; Burrell v The Queen [2009] NSWCCA 163; 196 A Crim R 199; R v Davidson [2009] NSWCCA 150; 75 NSWLR 150.

(2)   There was also no error in his Honour’s failure to warn the jury that they were required to be satisfied beyond reasonable doubt that Mr Hristovski provided the firearm before they could use that circumstance as a basis for inferring Mr Hristovski’s guilt. This was because the Crown case highlighted the provision of the gun: [1] (Beazley P); [4] (R A Hulme J); [202]-[203] (Adamson J)

In relation to (ii)

(3)   His Honour misdirected the jury by giving a hearsay warning in respect of Detective Ritchie’s note, in circumstances where the hearsay rule did not apply as the note was relevant for a non-hearsay purpose. The warning was also adverse to the applicants’ interests as it undermined the challenge to Mr Taylor’s credibility: [1] (Beazley P); [5] (R A Hulme J); [213]-[215] (Adamson J)

(4)   The warnings given about the unreliability of the evidence of Mr Taylor and Mr Radz were deprived of any substantial force by reason of the error identified in (iii): [1] (Beazley P); [5] (R A Hulme J); [221] (Adamson J)

In relation to (iii)

(5)   The trial judge erred by inviting the jury to consider a reason why Mr Taylor would lie. This gave the jury the impression that if they could not identify a reason why Mr Taylor would lie, then they should accept his evidence: [1] (Beazley P); [5] (R A Hulme J); [220]-[221] (Adamson J)

South v R [2007] NSWCCA 117

In relation to (iv)

(6)   The suggestions made to the jury during the summing up about how they might assess the evidence in a manner that might favour the Crown case had not been raised by the prosecutor in his closing address. This caused unfairness due to the inability of defence counsel to respond: [1] (Beazley P); [6] (R A Hulme J); [225], [243], [246]-[247], [251] (Adamson J)

(7)   The cumulative effect of the challenges made by the applicants to the summing up reveal that the summing up was so imbalanced as to deprive the applicants of a fair trial: [1] (Beazley P); [5] (R A Hulme J); [234]-[271] (Adamson J)

In relation to (v)

(8)   The evidence brought against each of Mr Hristovski and Mr Bubanja raised a reasonable doubt as to their guilt: [1] (Beazley P); [10]-[13] (R A Hulme J); [301], [323] (Adamson J)

(9)   Due to the lack of balance in the summing up, the doubts experienced on appeal could not be resolved by any advantage that the jury enjoyed. The guilty verdicts in respect of Mr Bubanja and Mr Hristovski were unreasonable: [1]-[2] (Beazley P); [9], [14] (R A Hulme J); [303]-[304], [324]-[326] (Adamson J).

Judgment

1. BEAZLEY P: I have had the advantage of reading in draft the judgments of R A Hulme J and Adamson J. I agree with the reasons of Adamson J and the orders her Honour proposes. I also agree with the additional observations of R A Hulme J.

2. In agreeing with their Honours’ reasons, I have reviewed the evidence, including the CCTV footage, and independently have come to the view that it was not open to the jury to be satisfied of the guilt of Mr Hristovski or of the guilt of Mr Bubanja.

3. R A HULME J: I have had the considerable advantage of having read in draft the judgment of Adamson J. In particular I am grateful for her Honour's thorough review of the evidence, the submissions of counsel and the summing up by the trial judge.

4. I agree with Adamson J for the reasons she has given that grounds 1 and 2 of Mr Hristovski’s appeal (Shepherd direction) should be rejected.

5. I also agree that the various grounds otherwise challenging aspects of the trial judge’s summing up should be upheld for the reasons her Honour has provided. (Mr Popovic’s Grounds 1, 2 and 3; Mr Koloamatangi’s Grounds 1 and 2; Mr Bubanja’s Grounds 2, 3 and 3A; and Mr Hristovski’s Ground 3). I confirm that in assessing the balance of the summing up, I have had regard to its overall effect rather than examining the impugned passages piecemeal. Viewed in isolation, some of those passages might not be of great significance but it is the cumulative effect that gives rise to a miscarriage in my view.

6. One theme permeated the summing up; that is, there were suggestions made to the jury about how they might assess the evidence in a manner that might favour the Crown that had not been raised by the prosecutor in his closing address. But, as was conceded by the Crown at the hearing in this Court, there were no matters favouring the applicants that had not been raised in their counsel’s addresses. This is not to say that a judge cannot point out matters that have not been raised in addresses that might assist a jury’s assessment of the evidence. But, of course, great care is required to maintain balance and to avoid putting to the jury anything of such significance that there is unfairness in the inability of defence counsel to respond. Regrettably, in this case there was such unfairness.

7. The unreasonable verdict grounds (Mr Bubanja Ground 1 and Mr Hristovski Ground 4) should be upheld as well. I am in general agreement with the reasoning of Adamson J in relation to this but wish to clarify my view in the light of my own assessment of the evidence.

8. First, however, it is worth noting that some fundamental propositions in relation to an appellate court's treatment of a ground of appeal asserting that a verdict of guilty returned by a jury is unreasonable or cannot be supported were very recently restated by the High Court of Australia in R v Baden-Clay [2016] HCA 35 at [65]-[66]. They included:

"It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is 'the constitutional tribunal for deciding issues of fact'. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable"… is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. …

With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court 'must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'."

9. I accept that in this case there is a difficulty in having regard to the "advantage enjoyed by the jury" when that advantage was potentially impacted adversely by the manner in which it was suggested they might assess the evidence of key prosecution witnesses whose credibility was seriously in issue. This is particularly so in relation to the trial judge's suggestion that they examine reasons "why would they lie?" which implicitly carried with it that the evidence of those witnesses might be more readily accepted if the jury could not identify a particular reason. It was, of course, fundamental that it was for the Crown to persuade the jury that they were telling the truth in the essential aspects of their evidence.

10. Mr Taylor’s credibility and reliability were very important matters in the assessment of the case against Mr Hristovski. I am not so troubled about matters of time, the sequence of events and the colour of the gun. In large part, such matters were naturally open to imprecision: timing and sequence of events because of the long period that had elapsed between the events in question and when Mr Taylor first reduced his version to written form (5 years) and when he gave evidence (7 years); and the colour of the gun because of the less than ideal circumstances (poor lighting and the brevity and trauma of the event) in which the witnesses at the nightclub had in which to see and recall the appearance of the weapon. These matters did not inspire confidence in Mr Taylor but I would place less weight on them than the applicants’ counsel did in submissions in this Court, and their trial counsel did in address to the jury, as being destructive of his credibility and reliability.

11. The one thing that particularly gives rise to a reasonable doubt about the guilt of Mr Hristovski in my mind is the seeming impossibility of Mr Taylor’s account of the collection of the gun from Mr Hristovski at Warrawong. (See the analysis by Adamson J under the headings “The sequence of events on the evening of 7 and 8 September 2007” and “The fact and timing of the visit to Mr Hristovski’s on 7-8 September 2007”.) It was a critical element in the case against Mr Hristovski but the evidence is such that there must be a grave doubt that it occurred at all. And the simple fact is, if there is a doubt about that, there is a doubt about Mr Hristovski’s guilt. This assessment may be made without recourse to the jury’s advantage, even if that was appropriate.

12. I cannot add anything useful to the review of the case against Mr Bubanja provided in the judgment of Adamson J. It was a case that was significantly dependent upon acceptance of particular aspects of the evidence of two indemnified witnesses who will be referred to in these reasons as Messrs Taylor and Radz. Mr Taylor’s evidence was problematic in a number of respects and the example I have referred to in relation to the collection of the gun is damaging in relation to his credibility generally. Mr Radz’s evidence was, on my assessment, of even more dubious credibility. The remainder of the case against Mr Bubanja was not enough to restore confidence in those men’s evidence.

13. I am mindful of the Crown’s submissions as to the importance of having regard to the combined force of all aspects of its case. In particular, the telephone evidence certainly provided the Crown with a powerful basis to argue for a joint enterprise being pursued by each of the applicants given the flurry of communications and attempted communications in which they were involved, and the sequence of them, in the critical period leading up to the shooting. The problem, though, is the absence of evidence as to the content of such communications which left the Crown cases in respect of Messrs Hristovski and Bubanja heavily dependent upon the evidence of Messrs Taylor and Radz to fill the gap.

14. Accordingly I have reached the same conclusion as Adamson J that the verdicts of guilty in respect of the applicants Hristovski and Bubanja are unreasonable.

15. I agree with the orders proposed by Adamson J.

16. ADAMSON J: On 29 May 2014, after a trial by jury, Tevi Koloamatangi, Dalibor Bubanja, Zlatan Popovic and Jason Hristovski (the applicants) were found guilty of the murder of Dragan Sekuljica on 8 September 2007. On 30 May 2014 the applicants were found not guilty of shooting Robert Gyles with intent to murder him.

17. The Crown case was that the deceased was shot a number of times by a single gunman, Mr Koloamatangi, just after 3am on Saturday 8 September 2007 as he was leaving Splashes night club in the Wollongong Novotel Hotel to cross the road to get into a taxi. He ran back inside and was followed by the gunman, who shot him again at close range and also shot Mr Gyles, a security guard who was nearby. The gunman fled to a vehicle driven by Peter Taylor. The deceased died at the scene. Mr Gyles survived.

18. The Crown case was that Mr Popovic had arranged the murder following a feud between Zoran Bubanja, the father of Mr Bubanja, and the deceased. The Crown case was that Mr Hristovski had supplied the gun (which belonged to Johnny Radz but was being held by Mr Hristovski for safekeeping) earlier that evening to Mr Koloamatangi and Mr Taylor for the purpose of its being used in a murder that night; and that Mr Bubanja acted as the lookout at Splashes on the night of 7-8 September 2007.

19. Mr Koloamatangi was sentenced to a term of life imprisonment commencing on 1 June 2023; Mr Popovic to a term of 34 years imprisonment comprising a non-parole period of 26 years commencing on 21 September 2012 with a further term of 8 years; Mr Bubanja to a term of 34 years imprisonment comprising a non-parole period of 26 years commencing on 1 February 2014 with a further term of 8 years; and Mr Hristovski to a term of 29 years imprisonment comprising a non-parole period of 22 years commencing on 25 July 2014 with a further term of 7 years.

20. The applicants apply for leave to appeal against their respective convictions for the murder of the deceased. Mr Bubanja seeks leave to appeal against his sentence.

The grounds of appeal

21. Mr Popovic, seeks leave to appeal on the following grounds:

1. A miscarriage of justice was occasioned by the trial judge’s directions to the jury to consider, and as to matters to take into account in considering, whether Mr Taylor had lied in his evidence (Summing Up (SU) 106, 107, 114, 117);

2. A miscarriage of justice was occasioned by the trial judge’s directions to the jury as to matters they should consider in relation to an argument put by the applicant (SU 119, 120-121); and

3. A miscarriage of justice was occasioned by the failure of the trial judge to discharge the jury (SU 121).

22. Mr Koloamatangi, seeks leave to appeal on the following grounds:

1. The trial judge erred in failing properly to warn the jury regarding the unreliability of evidence of:

1. A witness criminally concerned in the events giving rise to the proceedings (Mr Taylor); and

2. A prison informer (Mr Radz); and

2. The judge’s summing up caused a miscarriage of justice.

23. Mr Bubanja, seeks leave to appeal on the following grounds:

1. The verdict was unreasonable within s 6(1) of the Criminal Appeal Act 1912 (NSW).

1. The trial judge erred in inviting the jury to consider what reason the Crown witness, Peter Taylor, would have for lying, particularly in the absence of a direction that rejection of any proposed motive did not justify a conclusion that his evidence was truthful;

2. The trial judge erred in failing to direct the jury adequately, as required by s 165 Evidence Act 1995, about the possible unreliability of the evidence of the Crown witness, Peter Taylor, in particular by inviting the jury to consider what reason the witness would have for lying, particularly in the absence of a direction that rejection of any proposed motive did not justify a conclusion that Taylor’s evidence was truthful; and

3. The trial judge’s summing up occasioned a miscarriage of justice in that it failed to present a balanced account of the conflicting cases (ground 3A, added with leave).

24. Mr Bubanja also seeks leave to appeal against his sentence on the basis of a “justifiable sense of grievance” in light of the sentences imposed upon Mr Hristovski and Mr Popovic (ground 4).

25. Mr Hristovski, seeks leave to appeal on the following grounds:

1. The trial judge erred in not directing the jury that before they could convict the applicant they must be satisfied beyond reasonable doubt that he provided a firearm to the shooter;

2. In the alternative, the trial judge erred in not directing the jury that before they may use the alleged provision of a firearm to the shooter as a circumstance from which to consider the drawing of the inference of guilt, they needed to be satisfied beyond reasonable doubt that it had occurred;

3. The summing up as a whole failed adequately to convey to the jury the degree of scrutiny required regarding Mr Taylor’s evidence and tended on this issue to reverse the onus of proof; and

4. The verdict is unreasonable or cannot be supported, having regard to the evidence.

26. Although the applicants’ grounds of appeal are expressed in different ways, there is considerable overlap between them. The two principal challenges to the convictions are, in the case of Mr Hristovski and Mr Bubanja, that the verdict was unreasonable; and, in the case of each applicant, that the summing up was so unbalanced as to deprive him of a fair trial. The second challenge also incorporates other grounds, some of which are confined to a single applicant, such as Mr Hristovski’s complaint that a direction in accordance with Shepherd v The Queen (1990) 170 CLR 573 (the Shepherd direction) was not given.

27. Because the grounds concern the summing up and the reasonableness of the verdicts (in the case of Mr Hristovski and Mr Bubanja) in light of the evidence at trial, it is convenient to set out the Crown case at trial and the evidence before turning to the summing up in order that it can be seen in context.

The trial

28. The trial commenced on 2 April 2014. The jury was sent out to deliberate on 22 May 2014, after 32 sitting days. As the unreasonable verdict grounds have been raised only by Mr Bubanja and Mr Hristovski the outline of the evidence at trial will concentrate mainly on the evidence against them and in support of the Crown case generally, rather than evidence that is specific to either Mr Popovic or Mr Koloamatangi (such as the build, skin colour and appearance of the gunman).

29. None of the applicants gave evidence. The principal Crown witnesses were Mr Radz and Mr Taylor, who had both been given indemnities in return for giving evidence at the trial. Mr Taylor was criminally concerned with the shooting of the deceased as, according to his evidence, he had dined with Mr Popovic and Mr Koloamatangi earlier that evening, collected the gun which was used in the shooting from Mr Hristovski; delivered Mr Koloamatangi to the scene by car and driven him away soon after the shooting. Both Mr Taylor and Mr Radz also gave evidence of admissions made by Mr Popovic and Mr Bubanja which implicated them in the shooting.

30. The evidence of other Crown witnesses was either relevant to the background (including a possible motive arising from a dispute between Zoran Bubanja and the deceased following the construction of units at Figtree); or to the events leading up to and immediately after the killing.

The background

Mr Radz

31. Mr Radz lived in the Wollongong area until his imprisonment in 2000 following a conviction for a shooting offence. Before his incarceration he met Mr Popovic through a mutual friend. Mr Radz was in prison from 2000 until his release in April 2006. At about this time he met Mr Bubanja who was then living in Figtree. The two became friends and Mr Radz moved into Mr Bubanja’s house and they spent most days together. Mr Radz also contacted Mr Popovic after his release. Mr Radz heard of the deceased through Mr Bubanja, although he did not meet him. According to Mr Radz, Mr Bubanja told him many times in 2006 that he could not wait until the deceased was released from gaol (which took place in May 2006) so that he could put a bullet in his head.

32. In about May 2006, according to Mr Radz, Zoran Bubanja and Mr Bubanja and two others told him that he had organised a meeting with the deceased at 8pm at Chicko’s and that they wanted Mr Radz to shoot him in the leg. Mr Radz declined the assignment as he was on parole and believed he was being watched by the police.

33. In June 2006 police came to Mr Bubanja’s residence, after which Mr Radz moved to a unit in Wollongong, where he remained until his parole officer told him that he was not to live in the Illawarra area. He subsequently moved to his parents’ house in Sydney.

The disagreement between the deceased and Zoran Bubanja

34. The deceased’s widow, Mrs Sekuljica, gave evidence that the deceased and Zoran Bubanja had been good friends. The deceased was godfather to one of Zoran’s children (Mr Bubanja’s sister). They had both been involved in the construction business and had worked together. Their last joint project, the construction of units at Figtree, some time before 2006, ended their friendship. The deceased told his wife that Zoran owed him money at the end of the project which, to her knowledge, was never paid.

35. In 2006 the deceased and his wife were living with their two children in a unit in Corrimal Street which had a restricted entry activated by an intercom system with a camera. According to Mrs Sekuljica, towards the end of May 2006, Zoran and his sons “Daki” (Mr Bubanja) and Marko and another man (who on the Crown case was Mr Radz) came to the entrance to the unit. She could see the men and hear their conversation. Zoran asked the deceased to come outside. Mrs Sekuljica formed the view that Zoran was intoxicated and told her husband that she did not want him to go outside. The deceased remained inside and switched off his mobile phone.

36. Mr Radz gave a significantly different version of this incident. According to Mr Radz, Zoran Bubanja pressed the buzzer and, when it was not answered, Zoran, Mr Bubanja and the others started kicking the doors and Zoran Bubanja said to the deceased through the intercom, “You fucking dog, you’re dead.”

The gun

37. According to Mr Radz, in about March 2007, he contacted Mr Hristovski to ask him if he could collect an old-looking silver revolver, about 20-25cms long from him and hide it for him. According to Mr Radz, Mr Hristovski agreed and came to collect the gun. Mr Radz said that he had seen the gun once underneath the counter in Mr Hristovski’s workshop but had not seen it since.

38. By April 2007 Mr Radz was married and living in Yagoona. He gave evidence that on Good Friday in April 2007 Mr Popovic told him that Zoran Bubanja was paying him to get him (Mr Radz) to kill the deceased. According to Mr Radz, he refused the job because he had enough dramas. Not long after this discussion, Mr Radz’s parole was revoked and he returned to prison between June and October 2007.

Mr Koloamatangi

39. In April or May 2007 Mr Popovic introduced to family friends of the deceased (Angela Djuraki and her husband) a man known as “Doc” (Mr Koloamatangi) and asked if he could stay the night at their place. Mrs Djuraki and her husband agreed to his staying.

In the weeks before the killing

40. One night in August 2007, Mr Hristovski and Amy Ewen, his then girlfriend, went out with friends to Mamma’s Pizza in Lower Crown Street, Wollongong before going to the Steelers Club. Mamma’s Pizza was run by Mr Popovic’s mother who employed Mr Taylor, who was also known as “Herbie”, as a driver in her business.

41. When they arrived home that evening to Mr Hristovski’s parents’ place in Warrawong where they lived, Ms Ewen went to bed and fell asleep but Mr Hristovski went out again. Ms Ewen said that it was not uncommon for Mr Hristovski to go out without her. On his return he threw something heavy on the bed which hit her legs and woke her up. She sat up and saw that it was a gun, which she thought was a revolver. The light from the window was sufficient for her to see that part of the gun was silver. She saw the gun, or a similar gun, again on many occasions. Sometimes it was kept under the bottom drawer in the bedside table and sometimes in their wardrobe.

42. Mrs Sekuljica gave evidence that about a fortnight before the killing the deceased rang to ask her to pick him up from the North Wollongong Hotel (also known as the North Gong Hotel) and take him to Mamma’s Pizza. He went inside and came out again a minute later. He asked her to take him to get a kebab from a shop in Figtree. On the way to Figtree, the deceased received a phone call from Mr Popovic, in the course of which the deceased called him both a “trader” [traitor] and “Izdanica”, after a Serbian leader who had given up the Serbian people by swapping sides. Mr Popovic told the deceased to meet him at the bushland at Mt Keira. The deceased agreed that he would do so. By the time the deceased and his wife arrived at the kebab shop it was still daylight. Mrs Sekuljica estimated that they arrived there before 6pm.

43. The Crown tendered footage of the beer garden in the grounds of the North Wollongong Hotel on 31 August 2007 which showed the deceased, Zoran Bubanja and Mr Bubanja speaking together for almost half an hour. At times the three were separate from other acquaintances but at other times they were joined by others. The footage shows that they were generally on good terms but there were a few minutes when there was apparent conflict, or at least disagreement, between the deceased and Zoran Bubanja, as manifested by each man sticking out his chest and some slight shoving between them, although there is no evidence of any blow being struck. The timing of the footage is consistent with its having been taken on the same afternoon on which Mrs Sekuljica collected the deceased from the hotel and before the heated conversation between the deceased and Mr Popovic referred to above.

44. Mr Taylor’s evidence was that he had met “Doc” (Mr Koloamatangi) and Mr Bubanja a couple of weeks before the shooting. He already knew Mr Hristovski and the deceased. Mr Taylor’s evidence was that, about two to three weeks before the shooting, he overheard Mr Popovic talking to Mr Bubanja and Mr Hristovski in the Woolworths car park, across the road from Mr Popovic’s unit, which was empty at the time. Mr Taylor said that he heard a reference to “Dragan” (the deceased) and “Dusan” (a friend of the deceased). Mr Bubanja (“Daki”) said that they were dogs and were speaking to police.

45. Mr Taylor’s evidence was that, a week before the shooting, he and Mr Popovic were conversing at the front of Mr Taylor’s unit in Angel Street, Corrimal. Mr Popovic told him: “it is war” and asked him: “are you with me?” to which Mr Taylor responded, “Yes”.

46. On 2 September 2007 Mrs Djuraki returned from a trip overseas. When the deceased visited her at home between 2 September and 7 September 2007 he told her that Zlatan [Popovic] was the biggest traitor in Serbian history.

47. Ms Ewen recalled an occasion a few days before the shooting when Mr Hristovski left his home at Warrawong for Wollongong between 7pm and 10pm. On his return, he told her that he had been to see “friends” at Mamma’s Pizza. He made specific mention of Mr Bubanja and Mr Popovic and may have mentioned “Dragan” [the deceased].

48. Mr Taylor gave evidence that a day or two before the shooting (which was confirmed by a register to be the day before, 6 September 2007) he went to the Collegians Rugby Club by himself. While he was there he joined Mr Koloamatangi and his girlfriend Emma; Mr Bubanja; and Mr Popovic and his fiancée, Emily. He said that he stayed only for half an hour. Mr Taylor accepted in cross-examination that he was only able to be precise about matters such as the date on which he attended the Collegians Rugby Club because detectives had taken him through the register that he had signed on entry.

Friday 7 September 2007

49. On Friday 7 September 2007 Mrs Sekuljica and the deceased were at home after taking their children to school. Later Mrs Sekuljica went out alone. When she returned and found that the deceased had gone out she assumed that he had gone to the North Wollongong pub since he often went there on Fridays. The CCTV footage established that the deceased arrived at the North Wollongong Hotel at 12.26.38pm and left at 14:26:15pm on Friday 7 September 2007.

Mr Taylor’s evidence about the events of 7-8 September 2007

50. Mr Taylor said towards the end of his evidence in chief that he and Mr Popovic had gone to Mr Hristovski’s place at Warrawong together between lunch and the evening on 7 September 2007 for the purpose of Mr Taylor knowing where Mr Hristovski lived. In cross-examination Mr Taylor admitted that he had never made a statement to that effect before including it in his evidence in chief on 10 April 2014. He adhered to his evidence that this visit had occurred although he could not remember what else had occurred during the day on 7 September 2007 and ultimately said that he might have been shown the way to Mr Hristovski’s place the previous day.

51. On the evening of 7 September 2007 there was a dinner at Kings Chinese restaurant in Wollongong which was attended by Mr Popovic and his fiancée, Emily; one of Mr Popovic’s cousins and his girlfriend; Mr Taylor; and Mr Koloamatangi and his girlfriend, Emma. In cross-examination Mr Taylor said that the dinner started between 6 and 7 and finished about 8 or 8.30pm. He said that it was not possible that they were still there at 10pm.

52. Mr Taylor gave evidence in chief that, after the dinner, he had driven Mr Koloamatangi and Emma back to Sydney and dropped Emma somewhere near the Harbour Bridge before driving back to Wollongong with Mr Koloamatangi.

53. According to Mr Taylor, on their return to Wollongong they went to Mr Popovic’s unit. He estimated that they arrived there at about 10.30pm or 11pm. Mr Taylor accepted in cross-examination that the whole of his evidence (about time) was predicated on his being back in Wollongong by 10.30pm or 11pm. Mr Taylor said in evidence in chief and confirmed in cross-examination that he stayed for about an hour at Mr Popovic’s unit before leaving for Mr Hristovski’s house.

54. Mr Taylor’s evidence was that Mr Popovic sat down with him and Mr Koloamatangi. Mr Taylor did not catch all of their conversation as Mr Popovic and Mr Koloamatangi were whispering to each other. In cross-examination, Mr Taylor agreed that he said in three statements to police (4, 6 and 12 June 2012) that he had been told by Mr Popovic during that visit that the deceased was at the “North Gong Hotel”. Mr Popovic asked Mr Taylor to go to Mr Hristovski’s house to pick something up. There was also mention that they were going to go and see Dragan (the deceased) afterwards. Mr Taylor said originally in his evidence in chief that they left at about midnight but later said, also in chief, that they arrived at Mr Hristovski’s place between 11pm and midnight. Mr Taylor estimated that it took about 15 minutes to get from Mr Popovic’s unit in George Street, Wollongong, to Mr Hristovski’s place in Warrawong.

55. Mr Taylor confirmed in cross-examination that he was in the Wollongong CBD by about 12.49am on 8 September 2007.

56. Mr Taylor’s evidence was that he and Mr Koloamatangi drove from Mr Popovic’s unit to Warrawong and parked in the cul-de-sac outside Mr Hristovski’s house in Blaxland Avenue and waited for him to come out. Ten minutes later, Mr Hristovski came out with an old cream coloured bag with a short revolver with six bullets, stamped “Astra” which was silver with a black handle. According to Mr Taylor, Mr Koloamatangi said, “What the fuck is this. What am I going to fucking do with this?” to which Mr Hristovski responded, “That’s all I have.” Mr Taylor asked Mr Hristovski what they were going to do to Dragan (the deceased) and Mr Hristovski motioned with his hand in the shape of a gun.

57. Mr Taylor, who accepted that he had a rough idea by this time that someone was going to be shot, spoke with Mr Koloamatangi about what clothes would be needed. According to Mr Taylor, he and Mr Koloamatangi went from Warrawong to Mr Taylor’s unit in Corrimal (which was 25-35kms north of Mr Hristovski’s house and took about twenty minutes) to collect black pants, gloves and a beanie. Mr Taylor gave Mr Koloamatangi the dark blue hoodie he had been wearing that night and Mr Koloamatangi cut holes in the beanie to turn it into a balaclava. Mr Taylor confirmed in cross-examination that in his statement of 9 July 2012 he told police that he was in his own home for about 20 minutes.

58. Mr Taylor said that about this time they spoke on the phone to Mr Popovic who told them to go to Splashes.

59. Mr Taylor parked in the car park near Splashes and sat in the car smoking. He said that he turned his phone off so that no one could track his whereabouts. In cross-examination, he confirmed that he was sitting in the car for an hour and a half to two hours while Mr Koloamatangi waited outside.

60. Mr Taylor heard about five gunshots, started the car and drove to the exit to the car park. Mr Koloamatangi jumped in the back seat of the car and confirmed that he had done what he had to do. Mr Taylor then drove him back to Sydney.

61. According to Mr Taylor, on the way back to Sydney, Mr Koloamatangi asked him to call Mr Popovic about Mr Koloamatangi’s money. Mr Taylor’s evidence was that he used Mr Koloamatangi’s phone to make the call (having earlier been shown his own telephone records which did not show that such a call had been made from his phone). Mr Popovic told Mr Taylor to come and see him “tomorrow”. Mr Taylor drove Mr Koloamatangi to Mascot before returning home to Corrimal.

The telephone records of communications on 7 and 8 September 2007

62. Exhibit G comprised a schedule of telephone communications, or attempted telephone communications, both by voice call and SMS, which were relied upon to identify the approximate location of certain persons as well as to show communications between relevant persons. For present purposes it is sufficient to set out the conversations relied on by the parties with an indication, where applicable, of their forensic significance. The entries from Exhibit F, the CCTV footage are also included where relevant.

Date in ‘07	Time	Length (sec-onds)	Caller	Location of caller	Recipient (if relevant)	Location of recipient (if indicated)	Forensic significance
7.9	19.47.21	62 (call)	Popovic	Figtree-1	Tara Wilton, who lived with Mr Taylor	Popovic and others at Kings Chinese restaurant
7.9	21.05.31	14 (call)	Koloa-matangi	Brokers Point	Tara Wilton	Koloamatangi and Taylor on way back to Sydney after dinner at Kings
7.9.	21.43.41	36 (call)	Koloa-matangi	Engadine-V	Popovic	Wollongong CBD-1	Ditto
7.9.	21.51.44	17 (call)	Koloa-matangi	Kirrawee-V	Popovic	Wollongong CBD-1	Ditto
7.9.	22.16.32	52 (call)	Koloa-matangi	Mascot-V	Ditto
7.9.	22.29.21	43 (call)	Koloa-matangi	Alex-andria-V	Ditto
7.9	23.27.39	Bubanja, Petrovic and Milisic arrived at Splashes
7.9.	23.48.53	111 (call)	Koloa-matangi	Newtown-V	Koloamatangi and Taylor still in Sydney after about 2 hours since reached Engadine
7.9.	23.58.19	32 (call)	Not known	Taylor	Rockdale	Koloamatangi and Taylor heading south from Sydney towards Wollongong
8.9.	00.14	87 (call)	Taylor	Loftus-2	Ditto
8.9.	00.17.47	24 (call)	Buban-ja	Thirroul	Hristovski	Last call made by Bubanja before deceased arrived at Splashes at 12.30am
8.9	0.30.31	Deceased arrives at Splashes with 3 males and one female
8.9	00.46.44	57 (call)	Taylor	Wollongong-1	Koloamatangi and Taylor back in Wollongong
8.9.	00.49.58	27 (call)	Koloa-matangi	Wollon-gong CBD	Popovic	Wollongong CBD-3 (tower does not cover Warrawong area)	Inconsistent with Taylor’s evidence that call was made outside Hristovski’s place
8.9	00.50.56	18 (call)	Popovic	Wollon-gong CBD-3	Bubanja
8.9.	00.52.21	49 (call)	Popovic	Ditto	Koloa-matangi	Inconsistent with Taylor and Koloamatangi being at either Popovic or Hristovski’s place
8.9	00.54.54	3 DVM	Popovic	Ditto	Bubanja	Thirroul	Unsuccessful attempt to contact
8.9	00.55.17	Ditto	Popovic	Ditto	Bubanja	Ditto
8.9	00.55.46	0 UC	Popovic	Ditto	Hristovski	Ditto
8.9	00.55.51	39 (call)	Taylor	Wollongong CBD-2
8.9	00.59.55	3 DVM	Popovic	Ditto	Bubanja	Thirroul	Unsuccessful attempt to contact
8.9	1.00.16	46 (call)	Popovic	Ditto	Taylor	North beach-1	Location of Taylor
8.9	1.00.23	3 DVM	Popovic	Ditto	Bubanja	Thirroul	Unsuccessful attempt to contact
8.9	1.00.50	3 DVM	Popovic	Ditto	Bubanja	Ditto
8.9	1.02.18	38 (call)	Taylor	North-Beach-1	Hristovski relied on this to show that Taylor’s phone was on in the car park: challenge to his credit
8.9	1.03.07	72 (call)	Popovic	Ditto	Koloa-matangi
8.9	1.06.52	58 (call)	Popovic	Ditto	Bubanja	Successful attempt to contact
8.9	1.08.20	26 (call)	Popovic	Ditto	Hristovski
8.9	1.09.24	25 (call)	Popovic	Ditto	Koloa-matangi
8.9	1.15.18	9 (call)	Koloa-matangi	Crown St Mall	Popovic	Wollongong CBD-3
8.9	1.19.43	4 DVM	Popovic	Wollon-gong CBD-3	Bubanja	Unsuccessful attempt to contact
8.9	1.20.30	13 (call)	Emily Martin- fiancée of Popovic	Hristovski	Crown said Popovic made the call using Emily’s phone
8.9	1.23.36	3 (call)	Hristo-vski	Wollon-gong CBD	Bubanja	Hristovski said that this showed that he had already left home.
8.9	1.28.50	4 DVM	Hristo-vski	Ditto	Bubanja	Unsuccessful attempt to contact
8.9	1.29.15	3 DVM	Hristo-vski	Ditto	Bubanja	Ditto
8.9	1.29.41	4 DVM	Hristo-vski	Berkeley	Bubanja	Ditto
8.9	1.29.53	3 DVM	Hristo-vski	Ditto	Bubanja	Ditto
8.9	1.30.55	3 DVM	Hristo-vski	Ditto	Bubanja	Ditto
8.9	1.31.16	3 (call)	Hristo-vski	Ditto	Bubanja	Successful attempt to contact
8.9	1.31.59	3 DVM	Hristo-vski	Ditto	Bubanja	Unsuccessful attempt to contact
8.9	1.36.38	3 DVM	Popovic	Wollon-gong CBD-3	Bubanja	Ditto
8.9	1.48.50	49 (call)	Koloa-matangi	Brokers Point
8.9	1.50.29	3 DVM	Hristo-vski	Berkeley	Bubanja	Unsuccessful attempt to contact
8.9	1.50.50	3 (call)	Hristo-vski	Dapto	Bubanja	Successful attempt to contact
8.9	1.53.55	3 (call)	Hristo-vski	Wollon-gong CBD	Bubanja	Ditto
8.9	1.54.05	2 DVM	Hristo-vski	Ditto	Bubanja	Unsuccessful attempt to contact
8.9	1.58.19	4 DVM	Hristo-vski	Thirroul	Bubanja	Ditto
8.9	1.58.44	3 (call)	Hristo-vski	Brokers Point	Bubanja	Successful attempt to contact
8.9	1.59.52	107 (call)	Hristo-vski	Ditto	Popovic	Wollongong CBD-3	Ditto
8.9	2.02.08	2 (call)	Hristo-vski	Ditto	Bubanja	Ditto
8.9	2.02.19	3 DVM	Hristo-vski	Thirroul	Bubanja	Unsuccessful attempt to contact
8.9	2.02.43	3 DVM	Popovic	Wollon-gong CBD-3	Bubanja	Ditto
8.9	2.03.27	91 (call)	Popovic	Ditto	Hristovski
8.9	2.08.56	45 (call)	Hristo-vski	Thirroul	Popovic	Wollongong CBD-3
8.9	2.16.31	29 DVM	Koloa-matangi	Brokers Point	Taylor
8.9	2.28.50	13 (call)	Hristo-vski	Brokers Point	Popovic	Wollongong CBD-3
8.9	2.29.27	4 DVM	Popovic	Wollon-gong CBD-3	Koloa-matangi
8.9	2.29.41	0 DVM	Popovic	Ditto	Taylor
8.9	2.30.10	3 DVM	Popovic	Wollon-gong CBD-2	Koloa-matangi
8.9	2.30.38	24 (call)	Popovic	Wollon-gong CBD-3	Hristovski
8.9	2.57.59	71 (call)	Hristo-vski	Brokers Point	Popovic	Wollon-gong CBD-3
8.9	2.59.05	75 (call)	Dec-eased	Thirroul	Taxi Cabs Wollong-ong	Deceased deciding to leave Splashes
8.9	2.59.28	3 DVM	Popovic	Wollon-gong CBD-3	Koloa-matangi
8.9	3.01.03	Deceased walks down stairs towards footpath outside Splashes; has phone in his hand
8.9	3.02.37	Deceased shot and killed at Splashes Nightclub (Ex F- CCTV footage)
8.9	3.11.53	20 (call)	Koloam-atangi’s phone	Brokers Point	Popovic	(Crown) Gunman reporting to organiser
8.9	3.13.06	51 (call)	Popovic	Wollon-gong CBD-3	Hristovski
8.9	3.30.44	1	Hristo-vski	Berkeley	First call made by Hristovski from Berkeley area since 1.50.29.
8.9	4.16	76 (call)	Koloa-matangi	Mascot-V	Taylor has driven Koloa-matangi back to Sydney
8.9	5.03	76 (call)	Koloa-matangi	Rosebery-V	Taylor	Blakehurst	Taylor has dropped Koloamatangi in Sydney and is returning to Wollongong
8.9	5.29.16	65 (call)	Koloa-matangi	Randwick North	Taylor	Garrawarra Ridge-3	Ditto
8.9	11.00.46	12 (call)	Bubanja	Saddle-back Mountain	Hristovski	The first call made by Bubanja since 0.17.47 (before deceased arrived at Splashes)
8.9	11.43.58	55 (call)	Bubanja	Wynyard West	Popovic	Wollongong CBD-3
8.9	19.26.14	29 (call)	Popovic	Cringilla-2	Taylor	Brokers Nose-2	Taylor still in Wollongong
8.9	21.25.56	124 (call)	Taylor	Darkes Forest-2	Taylor on the way to Sydney
8.9	22.23.12	89 (call)	Taylor	Surry Hills East-2	Taylor in Sydney (on Crown case, possibly to pay Koloa-matangi)

Note: DVM means diverted to voicemail; UC means unanswered call

63. It is common ground that the evidence did not reveal a single call made by a relevant party in the area which came through the Berkeley tower which covered Warrawong (where Mr Hristovski’s then residence was located).

The other evidence of what occurred at Splashes night club on the night of Friday 7 September 2007 and early morning of Saturday 8 September 2007

64. A number of prosecution witnesses who were in and around Splashes at that time gave evidence about the lighting, the weather, the clothing of the gunman and the colour of the gun. Although there were some variations in their evidence, each of them identified the weapon carried by the gunman as being a dark colour.

65. The evidence of Timothy Berry, an expert witness, was that the bullets (recovered from the deceased’s body and Mr Gyles’ body) indicated that the gun was a revolver rather than a pistol and could have been either a 38 special firearm or a 357 Magnum calibre firearm. The rifling effect of the firearm could have been created by many other weapons, including Astras.

66. CCTV footage from cameras outside Splashes established that Mr Bubanja arrived at the night club from 11.27pm with his friends Miodrog Milisic (Big Mickey) and Stanko (Stan) Petrovic. The deceased arrived with others at 12.30am. Mr Bubanja and the deceased, who already knew each other, had contact in the bar of the club and also in the toilets. Mr Harris, an off-duty security guard, heard parts of their discussion and understood that there was a problem that needed to be fixed. There was evidence of the interaction between the two men from witnesses, some of whom did not observe any conflict between them and others who did. Witnesses gave evidence of poor telephone reception inside the night club which necessitated people stepping outside to make and receive calls. The number of calls which were made to Mr Bubanja that night which are recorded as “DVM”, or divert to voicemail is consistent with the poor reception inside Splashes.

67. At about 3am on 8 September 2007 the deceased left Splashes with Mr Bubanja and Big Mickey. Mr Bubanja said in his Electronically Recorded Interview of a Suspected Person (ERISP) that they intended to catch a taxi to a brothel. The deceased made a call to a taxi at about this time. Just outside the premises, the deceased was shot by a man wearing a black balaclava. The deceased ran back inside Splashes and was followed by the gunman. Mr Gyles, a security officer, approached the gunman to restrain him and was himself shot in the elbow. The gunman then shot the deceased a further three times. The deceased died soon afterwards. The gunman left the premises and was driven away by Mr Taylor who was parked nearby.

68. Witnesses spoke of Mr Bubanja being distressed after the shooting.

Mr Hristovski’s whereabouts on 7-8 September 2007

69. On the evening of 7 September 2007 Ms Ewen and Mr Hristovski had something to eat after which they went to their room (in Mr Hristovski’s parents’ house at Warrawong) to watch movies. Ms Ewen fell asleep at about midnight. She woke in the early hours of the morning to find that Mr Hristovski was no longer in bed next to her. There was a phone beside the bed (which was Mr Hristovski’s as she did not have her own mobile phone at the time) which she tried to use to call him but it did not have any credit. At that time Mr Hristovski had two phones. She went back to sleep and was woken by Mr Hristovski getting back to bed. She estimated that he returned some time between 3am and 5am. She could see light coming through the window. He told her that he had gone to pick up Mr Bubanja from a nightclub in Wollongong and take him home. Ms Ewen agreed, in cross-examination, that Mr Hristovski and Mr Bubanja were good “mates” and that Mr Hristovski would often go out at night to give Mr Bubanja a lift.

The aftermath

70. On Saturday 8 September 2007 Ms Ewen heard Mr Hristovski’s brother, Daniel, telling him that he had been at Splashes the previous night and had seen Mr Bubanja there. Mr Hristovski told his brother that he had picked him up from Splashes and taken him home. Later that morning, as a result of a television news bulletin, Ms Ewen first discovered that there had been a shooting in Wollongong. She learned from the television news on Monday 10 September 2007 that the deceased had been shot dead at Splashes in the early hours of Saturday morning.

71. According to Mr Taylor, later that same day, on Saturday 8 September 2007, or the following day, Mr Taylor collected money from Mr Popovic and drove to Sydney to deliver it to Mr Koloamatangi who complained that it was “short”. On several occasions Mr Taylor delivered money to Mr Koloamatangi from Mr Popovic. Mr Taylor said that he was not paid for his involvement in the shooting or for his collecting money and delivering it to Mr Koloamatangi. There was no indication in the evidence of why Mr Taylor had been willing to participate in the murder.

72. Either a couple of days, or a week, after the shooting, Mr Popovic said to Mr Taylor, “Go get the gun and toss it into a pond” in front of “Dusan’s” house. Dusan was a friend of the deceased. When Mr Taylor passed on this message to Mr Koloamatangi he said that he had already disposed of it in a bin at a location in Surry Hills which he referred to as the “Projects”.

73. According to Mr Taylor, he saw Mr Bubanja a week or two after the shooting but there was no conversation about it at that time. Later Mr Popovic and Mr Bubanja visited Mr Taylor at home and took him for a drive in Mr Popovic’s white BMW. Mr Popovic and Mr Bubanja were mostly speaking Serbian, which Mr Taylor did not understand. At one point, Mr Popovic, referring to Mr Taylor, said, “Herbie did it.” Mr Bubanja responded, “You’re a sick fuck” and shook his hand. This conversation was relied on by the Crown to prove that Mr Popovic was involved in the killing and that Mr Bubanja was glad that the deceased had been killed.

74. Some time after the shooting, Ms Ewen got a job in the kitchen at Mamma’s Pizza where Mr Taylor was still working as a delivery driver.

75. Not long after Mr Radz was released from gaol in October 2007, he attended Mr Popovic’s wedding to Emily. Later he visited Mr Popovic with his own wife and newborn daughter. According to Mr Radz, he and Mr Popovic went for a walk in the park opposite the cinemas in the Wollongong CBD in the course of which Mr Popovic told him that an Islander called Doc (who Mr Radz said he knew from 2000) [Mr Koloamatangi] had done the job and that “Herbie” [Mr Taylor] was driving and that Mr Bubanja was the one to make the call for Doc to strike and that he was following the deceased to Splashes. Mr Popovic also told him that Zoran Bubanja paid him $250,000 to arrange it and “Doc” $40,000 to do the job.

76. It was put to Mr Radz by Mr Popovic’s trial counsel that this conversation was a lie and that Mr Radz knew all the details which he had allegedly been told by Mr Popovic from either the prosecution brief or from the newspaper. Mr Radz accepted that he had heard from his wife about the murder but that he did not like reading and only read the headlines. He said the whole incident (at Splashes) did not concern him.

77. The Crown tendered recordings of telephone intercepts made on 23 October 2007 and in particular a conversation in which Mr Hristovski phoned Mr Popovic, who put him on to Mr Radz, who was with him at the time. The purpose of the tender was to show that Mr Radz, Mr Hristovski and Mr Popovic were on good terms, which was consistent with the Crown case that Mr Radz had entrusted his gun to Mr Hristovski and that Mr Popovic had been prepared to discuss the murder with Mr Radz.

78. In early 2008 Ms Ewen’s relationship with Mr Hristovski ended.

79. In July 2008 Mr Radz was imprisoned again and remained in custody until his release on 27 April 2009. He gave evidence that while he was at Parklea Correctional Centre (Parklea) he saw Mr Koloamatangi who was on the other side of a wire fence which separated sections of the prison. According to Mr Radz, Mr Koloamatangi told him that he was in the car park with the balaclava and the gun and that when he got the call he ran up to Splashes, shot the deceased outside and then followed him inside, chased him inside and finished him off, by shooting him in the head and the chest and also shot the security guard too, by accident. According to Mr Radz, Mr Popovic had not paid him what he owed him for the job.

80. In about August 2008 Ms Ewen formed a relationship with Mr Taylor. She told him about the single gun, or similar guns, she had seen in Mr Hristovski’s possession when she was living with him. On 17 April 2009 Ms Ewen was still in a relationship with Mr Taylor when he was assaulted, apparently by Mr Hristovski or his associates. Ms Ewen accompanied Mr Taylor to the police station to report the assault. After he was taken to hospital she made a statement to police about the events relating to the shooting. This was the first statement she had made regarding the shooting. The police told her that Mr Hristovski was angry about Mr Taylor starting a relationship with her. At about this time Ms Ewen and Mr Taylor had a further conversation about the gun she had seen in Mr Hristovski’s possession.

81. Some time between Mr Radz’s release from gaol on 27 July 2009 and his going overseas in 2010, he dined with Mr Bubanja and others at a restaurant in Wollongong. According to Mr Radz, Mr Bubanja told him that he was the one who followed the deceased into Splashes and made the phone call for “Doc” to strike, to which Mr Radz said, “you are a sick cunt”, which were said to be words of congratulations or approval.

82. Some time after 2009 Mr Radz went with Mr Bubanja to Zoran Bubanja’s farm to visit Mr Popovic. According to Mr Radz, Mr Bubanja bragged that he was the “man for the whole operation and that if it wasn’t for him it wouldn’t have happened and that the shooter and driver were moved in from what he was telling him and that his father paid for the whole thing and Zlatan [Mr Popovic] organised the whole thing, the shooter, the weapon and the car.”

83. According to Mr Radz, he saw Mr Koloamatangi in Parklea Gaol in about September or October 2013. They were together with an opportunity to speak for “a good five minutes”, during which time Mr Koloamatangi told Mr Radz that he had not been paid yet for the murder although he had confronted Mr Popovic.

84. According to Mr Radz, he also saw Mr Popovic in Parklea in 2013. Mr Popovic told him that “Herbie” [Mr Taylor] had “turned dog” against him for the “Splashes murder”.

Mr Taylor’s prior statements

85. On 1 June 2012 Mr Taylor met with Detectives Ritchie and Santivalle in the course of which they intimated that they might be able to get permission to take an induced statement from him, which he understood meant that nothing in the statement could be used against him. The interview on 1 June 2012 was not recorded but Mr Taylor gave police, for the first time, an outline of what he might be able to tell them. Mr Taylor did not remember any details of the conversation with the detectives that day. When Detective Ritchie had finished the interview he made notes of what he remembered Mr Taylor saying to him, including that he had collected the gun on the night of 7 September 2007 after the dinner at Kings in Wollongong and before the first trip to Sydney. Detective Ritchie explained that he did not take notes in the course of the discussion because he found that potential witnesses tended to be more forthcoming if no notes were made during the first interview, before it was determined whether an induced statement was taken.

86. Mr Taylor accepted in cross-examination that he had made induced statements on 4, 6, 14, 21 June 2012; 9 and 30 July 2012; 10 and 20 September 2012; and 10 January 2013.

Mr Bubanja’s police statements

87. Mr Bubanja made a statement to police on 8 September 2007. He described the sequence of events on the evening of 7 September 2007, including the arrival of the deceased at Splashes about an hour or so after he arrived. He said that he had spent a considerable time talking to the deceased. He described leaving the premises with the deceased and their plan to catch a taxi together to another venue. He described the shooting of the deceased. He went straight from the scene of the murder to the police station to make the statement.

88. Mr Bubanja was interviewed by Detective Chambers on 21 November 2012. He was asked what his relationship was with Mr Popovic, to which he responded, “I just met him.” He said that he could not recall why he had phoned him that night or what Mr Popovic said to him. He was asked whether it was possible that he rang Mr Popovic on the night of the murder and he said he could not remember. He also said he could not remember telling Mr Popovic that the deceased was at Splashes and could not comment on the proposition that he was there keeping a look-out for the deceased. He denied any prior knowledge or, or involvement in, the murder.

Challenges to Mr Taylor’s credibility

89. Substantial challenges were made by all defence counsel to Mr Taylor’s credibility. He admitted that he had been involved in drug dealing, as a result of which he was in fear for his life from a drug dealer called Simon De Witt, whom he used to drive to and from Sydney once or twice a week to purchase ice.

90. Mr Taylor had been given the following indemnity:

“TO   PETER TAYLOR

Indemnity under Criminal Procedure Act 1986, section 32

If you actively co-operate in criminal proceedings pending against: Zlatan POPOVIC, Dalibor BUBANJA, Tevi KOLOAMATANGI and Jason HRISTOVSKI for the offences of murder and shoot with intent to murder;

AND if your evidence there is the truth, the whole truth and nothing but the truth,

I grant you indemnity from prosecution for:

1.   Murder of Dragan Sekuljica on 8 September 2007;

2.   Shoot at with intent to murder Robert Gyles on 8 September 2007;

3.   . . .

4.   Any associated offence in respect of matters relevant to the proceedings and covered by your evidence in the proceedings.”

91. Mr Taylor’s credibility was challenged on the basis of differences between what he told Detectives Ritchie and Santivalle on 1 June 2012 (as recorded in a file note prepared after the interview) and his evidence. The principal differences relied on were:

1. Mr Taylor was recorded as having told the officers on 1 June 2012 that he had collected the gun from Mr Hristovski before driving to Sydney to drop off Mr Koloamatangi’s girlfriend, whereas in his evidence he said that he collected it after they returned to Wollongong; and

2. In the notes of the interview on 1 June 2012 there is no record of Mr Taylor mentioning that he returned to his home to supply clothing for Mr Koloamatangi.

92. Mr Taylor agreed that he had never, before giving his evidence in chief in April 2014, suggested that he had driven with Mr Popovic to Mr Hristovski’s place before the killing and had realised when giving his evidence in chief that he must have known where it was when he went there later that evening. Mr Taylor asserted that it was only when he saw the paper the next day that he realised that the person who had been shot dead at Splashes was the deceased.

93. Mr Taylor was cross-examined about being approached by police on a number of occasions prior to 2012 when he decided to answer their questions. Mr Taylor confirmed in cross-examination that at the committal hearing in May 2013 he had an independent recollection of the times of the dinner and the trip to Sydney and the return to Wollongong on the night of 7 September 2007.

94. Mr Ramage QC, trial counsel for Mr Popovic, put to Mr Taylor that in his statement of 14 June 2012 he had said that between the time he left Mr Popovic’s unit to collect the gun from Mr Hristovski until he spoke to Mr Popovic after the killing he did not have any other conversations with Mr Popovic. Mr Taylor responded that he thought that he had included in his statement the call from Mr Popovic telling him to go to Splashes night club.

95. Mr Taylor confirmed in cross-examination by Ms Davenport SC, trial counsel for Mr Koloamatangi, that there were no calls recorded on Exhibit G which indicate that Mr Taylor made any telephone calls during the whole of 7 September 2007 or the morning of 8 September 2007 apart from an unconnected call to the phone of Tara Wilton, being a friend for whom he regularly obtained drugs. She put that the absence of record was inconsistent with what he had said in his police statement of 9 July 2012 that he rang Mr Popovic from outside Mr Hristovski’s place to ask him to ring Mr Hristovski to tell him that they had arrived. Mr Taylor identified the call at 00.49.58 in Exhibit G as being the one in which Mr Koloamatangi had phoned Mr Popovic to tell him that they were outside Mr Hristovski’s house.

96. Trial counsel for Mr Koloamatangi cross-examined Mr Taylor about his evidence in chief that, on the way back to Sydney after the shooting, Mr Koloamatangi asked him to call Mr Popovic about Mr Koloamatangi’s money and that Mr Taylor used Mr Koloamatangi’s phone to make the call. Mr Taylor agreed that his first version could have been that he had used his own phone but that it may have been pointed out to him that this did not fit with the phone records (which did not show that he had made any such call). Mr Taylor accepted that the police had gone over “the time line” with him and pointed out that some of the statements he had made did not fit with some of the other evidence they had.

97. Mr Taylor agreed in cross-examination by trial counsel for Mr Bubanja that he only mentioned the gathering in the Woolworth’s car park in his induced statement of 4 June 2012 and that in that statement he had not mentioned that anyone had referred to “Dragan”. He agreed that he referred to “Dragan” as being a name he had heard mentioned in the fortnight prior to the shooting and had not put it in context of the gathering in the car park. Mr Taylor agreed that there was no mention in his statement of 4 June 2012 that Daki or Dalibor Bubanja had been at the Collegians on 6 September 2007.

98. Mr Taylor agreed in cross-examination by Mr Hristovski’s trial counsel that he had been the victim of an attempted kidnapping on 17 April 2009 as a result of which he was assaulted and hospitalised. Shortly after Mr Taylor had provided a statement to police on 17 April 2009 about the assault, he was interviewed by Detectives O’Donohoe and Noble from the Homicide Squad regarding the death of the deceased. Detective O’Donohoe suggested to Mr Taylor that Mr Hristovski might have been involved in the assault because he was angry that Mr Taylor was having a relationship with Ms Ewen.

99. Mr Taylor did not provide the detectives with any information about the killing when he was interviewed on 17 April 2009 about the assault on that day; on 1 July 2009 when he was contacted by Detective Chambers (the officer in charge of the murder investigation); or indeed at any time prior to 1 June 2012. At the time Mr Taylor made the induced statements in 2012 he was no longer in a relationship with Ms Ewen.

The relationship between Mr Taylor and Ms Ewen

100. Mr Taylor agreed in cross-examination by trial counsel for Mr Hristovski that, as at September 2007, Ms Ewen lived with Mr Hristovski and his parents at Blaxland Avenue, Warrawong. He agreed that he had worked with Ms Ewen at Mamma’s Pizza towards the end of 2007, at which time she had been living with her mother at Dapto. He formed a relationship with Ms Ewen in August 2008 and had dropped her at Dapto on a few occasions. He denied that he had ever dropped her off at the Blaxland Avenue address.

Challenges to Mr Radz’s credibility

101. The indemnity granted to Mr Radz by the Attorney-General was tendered in evidence and provided in part:

“TO   Johnny Radz

Indemnity under Criminal Procedure Act 1986, section 32

If you actively co-operate in criminal proceedings pending against:

Zlatan POPOVIC, Dalibor BUBANJA and Tevi KOLOAMATANGI for the offences of murder and shoot at with intent to murder on 8 September 2007;

[four other unrelated incidents involving murder or shooting were listed]

…

AND if your evidence there is the truth, the whole truth and nothing but the truth,

I grant you indemnity from prosecution for:

1.   Fire firearm at dwelling house and reckless disregard for safety 17 October 2012;

2.   Discharge firearm with intent to cause grievous bodily harm on 9 February 2013;

3.   Use unauthorised pistol on 9 February 2013; and

4.   Knowingly deal with proceeds of crime, namely $11500 cash on 18 February 2013.”

102. Mr Radz accepted that he had been involved in organised crime and gangs for at least part of his adult life. At times he had held weapons for the purposes of providing them, when required, for an outlaw motor cycle gang. He was cross-examined about his criminal history, which began when he was 17. He accepted that in 1996 and 1998 he committed offences of robbery with aggravation, stealing and two assaults but disagreed that these met the description of “organised crime”. Mr Radz agreed that in 2000 he was initially charged with attempted murder, damage property by fire, possess and use unregistered firearm and shoot at persons with intent to inflict grievous bodily harm and two counts of malicious wounding and was ultimately sentenced for shooting at a person with intent to inflict grievous bodily harm, with three counts of malicious wounding, damage property by fire and the possession of an unregistered firearm taken into account. He agreed he told police the shooting involved discharging the “full clip” of a Beretta pistol towards a person in a car but maintained the person was not badly injured. He was sentenced to nine years with a minimum of six years imprisonment. Mr Radz agreed that on 5 July 2001 he was also convicted of possession of a knife in a public place.

103. When Mr Popovic’s trial counsel put to Mr Radz that he made up the admissions attributed to the applicants because he wanted to gain from the reward of $200,000 offered for information about the murder, he said that he only became aware of the reward when he was half way through his statement and that he would not put his life in danger for $200,000. Mr Radz agreed that he had gone to prison in 2000 for a crime that involved kneecapping and that he had been charged with the same crime in 2013. He agreed that he knew when he was arrested in February 2013 that he could get a reduction in his sentence if he gave assistance to the police because the police talked to him about it on the night he was arrested.

104. Mr Radz was cross-examined extensively about previous statements he had made to the Crime Commission which he accepted were untrue. Counsel for each of the applicants cross-examined Mr Radz extensively on his credibility, largely on the basis of his prior inconsistent statements. Mr Radz agreed that he had prepared a time line of events to assist his recollection and that there was no mention of Mr Hristovski or of his nickname of Pigeon in the time line for 2007.

105. Mr Radz gave evidence that Mr Bubanja told him many times in 2006 that he could not wait until the deceased was released from gaol (which took place in May 2006) so that he could put a bullet in his head and that seeing him (Mr Radz) was a “dream come true”. Although Mr Radz said that there were 100 witnesses, this appeared to be an exaggeration, particularly as Mr Radz could not name one.

106. He was cross-examined by Mr Hristovski’s trial counsel about why he would have given the gun to Mr Hristovski whom he hardly knew and whom he did not pay to come and collect the gun.

Other evidence

107. The reward note was tendered by Mr Corish, trial counsel for Mr Hristovski:

“Office of the Minister for Police,

Sydney

MURDER

TWO HUNDRED THOUSAND DOLLARS ($200,000)

REWARD

ON the 8th September 2007, Dragan SEKULJICA, aged 28 years, left the licensed premises ‘Splashes Nightclub’ at about 3.00am with two associates. At this time Dragan SEKULJICA was shot by a person unknown and died at the scene.

Notice is hereby given that a reward of up to two hundred thousand dollars ($200,000) will be paid by the Government of New South Wales for information leading to the arrest and conviction of the person or persons responsible for the death of Dragan SEKULJOCA.

The allocation of this reward will be at the sole discretion of the Commissioner of Police.”

The defence cases

108. At the close of the Crown case on 15 May 2014, counsel for all applicants other than Mr Hristovski announced that they did not propose to call any evidence. Mr Corish called Mr Hristovski’s brother, Christopher, who gave evidence that he did not ever see a silver revolver at the premises at Cringila from which the family business operated. The witness gave evidence that he took over the business from his father in about June 2007 at which time he moved the business from Cringila to Unanderra and that he never saw a gun at those premises either.

Discussion about directions prior to addresses and the summing up

109. Trial counsel requested warnings with respect to the evidence of Mr Taylor and Mr Radz. Mr Ramage sought warnings under s 165 of the Evidence Act 1995 (NSW), including a “prison informer” warning in relation to Mr Radz’s evidence and a warning about “admissions” and “hearsay”.

110. The trial counsel for Mr Hristovski requested a Shepherd direction in relation to Mr Hristovski’s provision of the gun. The trial judge said that he was inclined to give such a direction although the Crown said that the jury would only need to be satisfied beyond reasonable doubt of that matter if the jury was relying on his provision of the gun alone as evidence of Mr Hristovski’s involvement.

Counsel’s addresses

The Crown address

Evidence generally relied upon in support of the Crown case

111. The Crown summarised the events relevant to its case against all of the applicants by referring to the following:

1. the falling out between Zoran Bubanja and the deceased over the construction of a block of units at some stage prior to 2006;

2. the approach in May 2006 by Zoran Bubanja, Mr Bubanja and Marko Bubanja and Mr Radz to the deceased’s unit (shortly after the deceased was released from gaol) requesting that he come outside;

3. the meeting on 31 August 2007 at the North Wollongong Hotel between Mr Bubanja and his father and the deceased where they appeared to be engaged in a heated exchange, following which there was a telephone call between the deceased and Mr Popovic in which the deceased called him a traitor;

4. the presence at the North Wollongong Hotel on 7 September 2007 of the deceased and Mr Bubanja at different times in the course of the afternoon and evening;

5. the dinner at Kings Chinese restaurant on the evening of 7 September 2007 which was attended by Mr Popovic and his fiancée; Mr Koloamatangi and his girlfriend; a cousin of Mr Popovic and his girlfriend; and Mr Taylor;

6. the return of Mr Taylor and Mr Koloamatangi from Sydney to Wollongong accompanied by phone contact with Mr Popovic to whom a visit was paid, followed by the collection of the gun from Mr Hristovski’s residence and the journey to Mr Taylor’s place to collect clothes;

7. the arrival of Mr Taylor and Mr Koloamatangi at Splashes and their lying in wait for the deceased during a period where there was considerable contact between Mr Popovic, Mr Hristovski and several attempts to contact Mr Bubanja, which were, on occasion, successful;

8. the departure of Mr Hristovski from his residence in the middle of the night while Ms Ewen was asleep and his subsequent return in the early hours of the morning;

9. the interchange between the deceased and Mr Bubanja in the toilet at Splashes;

10. the shooting of the deceased shortly after he had called a taxi on the way out of Splashes;

11. the flurry of telephone calls shortly prior to 3am on 8 September 2007;

12. Mr Taylor driving Mr Koloamatangi back to Sydney from Wollongong shortly after 3am on 8 September 2007.

112. The Crown addressed the jury on its case with respect to each of the applicants in turn.

Evidence relied upon in respect of the Crown case against Mr Bubanja

113. As against Mr Bubanja, the Crown relied on (1) and (2) above and referred to the evidence that Mr Radz lived at Mr Bubanja’s place from April 2006 until June 2006. The Crown also relied on (3) and (4), (7), (9), (10) and (11) above and the incident at Chicko’s when Mr Radz had been asked to shoot the deceased in the leg but had declined the assignment. The Crown submitted that there was ongoing discord between the deceased and Zoran Bubanja, which escalated at the end of August 2007 and continued until the night of the killing on 7-8 September 2007.

114. The Crown referred to: Mr Taylor’s evidence of the gathering in the Woolworth’s car park about a week before the shooting in which the deceased was referred to as a “dog”; the conversation after the shooting in which Mr Bubanja shook Mr Taylor’s hand in recognition for having killed the deceased; and Mr Harris’ evidence about the exchange in the toilets between the deceased and Mr Bubanja in which there was a reference to a problem that needed to be fixed. The Crown also relied on what Mr Bubanja had said in his interview with Detective Chambers on 21 November 2012 and in particular that he had just met Mr Popovic shortly prior to the murder when the evidence established that they had known each other for much longer.

Evidence relied upon in respect of the Crown case against Mr Hristovski

115. As against Mr Hristovski, the Crown relied on “two separate pieces of evidence”: first, the supply of the gun that was used to kill the deceased and to shoot Mr Gyles; and, secondly, Mr Hristovski’s presence in the vicinity of Splashes in the early hours of the morning leading up to and surrounding the time of the shooting and the number of telephone calls to which he was a party. The Crown said that the first piece of evidence would be sufficient for a conviction if the jury was satisfied that the gun was supplied with the intention that it be used in the murder. The Crown continued:

“The second piece of evidence, the involvement by leaving his home and going to the vicinity of Splashes Nightclub, either alone or together, with the evidence of the supply of the gun, if you are satisfied that that was done with a view to assisting those that were intending to carry out the shooting, by means of being a conduit to the information as to the whereabouts and movements of the intended victim, then that would give rise to liability by way of participation in that common enterprise, provided of course you were satisfied that he was a participant in that enterprise.”

[Emphasis added.]

116. The Crown referred to Mr Radz’s evidence of supplying a gun to Mr Hristovski and his evidence that he had seen the gun at the workshop of Mr Hristovski’s family business. He also referred to Ms Ewen’s evidence about the gun in the bedroom as well as the different descriptions of the gun by eyewitnesses at Splashes (that it was black) and by Ms Ewen (that it was silver) and Mr Radz (that it was silver, old and 20-25cms long). The Crown relied on Mr Taylor’s evidence of going to Mr Hristovski’s place with Mr Koloamatangi to collect the gun.

117. The Crown referred to Detective Ritchie’s note of the informal interview which took place with Mr Taylor on 1 June 2012 and suggested that he might have recorded events in a different order from the way they had been related to him by Mr Taylor. The Crown contended that the version recorded in the note, that they had collected the gun before going to Sydney to drop off Mr Koloamatangi’s girlfriend, was unlikely and could be explained by Detective Ritchie having recorded the events in the wrong order.

118. It is not necessary to detail the evidence relied on by the Crown against Mr Koloamatangi or Mr Popovic in addition to the general evidence referred to above as neither applicant sought leave to appeal on the ground that his verdict was unreasonable or not able to be supported.

119. The Crown referred to Mr Taylor’s credibility in the context of the telephone records in the following terms:

“So, you have this combination of events where Peter Taylor says, look, I was the driver. I drove Doc to Sydney to drop his girlfriend off. I drove back to Wollongong afterwards with Doc. We know Doc is back in Wollongong. He is using his phone. The Splashes events occur. The phone is used to ring Zlatan Popovic. Peter Taylor says that is the call where Doc asked for money. Then the calls go back to Sydney to around the Mascot area and then Peter Taylor makes his way back to Wollongong. I might say this Peter Taylor you remember, became a witness for the plaintiff in 2012 and his statement details the events shortly before and the night of the shooting murder of Dragan Sekuljica.

He would not have known that the phone records tracked him in the way that they did. He would not know that the phone records tracked phone calls made by Doc and phone calls made by him and tracked the movements that various people also made. The reason I mention that is because if Peter Taylor were making this up, if he were not involved and not involved as the driver for Doc that night at the request of Zlatan Popovic, how could he know about the events of that night in sufficient detail to be able to describe those movements and those telephone calls taking place.

As it turns out, they support his figment of imagination, fantasy if that is what you were to be asked to regard it as.

He might be in error as to some of the timing, some of the details of the timing, and that is not difficult to understand given that he made his statement in 2012, about events five years before. It is important to remember that. I'm not saying that is an excuse for inaccuracy but it is accuracy where accuracy counts where you are being asked to say - Well that couldn't have happened because he has made a mistake about the time.

Now he could not have known that the police had the records of these phones, that they have or been able to do the analysis of phone records that they have and, they wouldn't match up unless he had been involved as the driver of Doc that night.”

120. The Crown also referred to the calls involving Mr Hristovski which indicate (by reference to the various towers) that he had travelled through Wollongong CBD and to Brokers Point and Thirroul (which cover the area where Splashes is located) and also in the Berkeley area (which covers Warrawong, where he lived).

The addresses of defence counsel

Address on behalf of Mr Hristovski

121. Mr Corish replayed video footage and cross-referenced it to the phone records. He submitted that the Crown had not excluded an innocent explanation: namely, that Mr Hristovski was out with friends on a Friday night and communicated from time to time on the phone with them and others.

122. Mr Corish also relied on the proven falsity of the following aspects of Mr Taylor’s evidence:

1. that the call made by Mr Koloamatangi at 00.49.58 was made outside Mr Hristovski’s house, in light of the evidence that: the tower through which it passed was north of the area within which Warrawong was located; and no call at a relevant time was made by Mr Taylor or Mr Koloamatangi through the tower that covered Warrawong; and

2. that he had switched off his phone while he was in the car park outside Splashes when Exhibit G recorded a call at 1.02.18 on 8 September 2007 which was made from his phone.

123. Mr Corish submitted that Mr Taylor and Mr Radz were both skilled liars. He relied on Mr Taylor’s motive to harm Mr Hristovski by reason of the assault on him that took place in April 2009, which he and Ms Ewen believed was as a result of her former relationship with Mr Hristovski. Mr Corish relied on the inconsistency between Detective Ritchie’s note of the informal interview on 1 June 2012 and Mr Taylor’s evidence at trial as to the sequence of events on 7 and 8 September 2007. He also relied on the disparity between the descriptions of the gun given by the eye witnesses at Splashes (that it was dark); Ms Ewen’s evidence (that it was a silver revolver); Mr Taylor’s evidence (silver gun); and Mr Radz’s evidence of the gun he handed over (old silver revolver 20-25cms in length). Mr Corish also referred to examples of inconsistencies in Mr Taylor’s evidence.

124. Mr Corish read out extracts from the evidence of Mr Radz in support of his submission that he was a skilled liar and submitted that Mr Radz’s evidence was so unreliable that it could not support Mr Taylor’s evidence or the Crown case.

Address on behalf of Mr Bubanja

125. Mr Austin, trial counsel for Mr Bubanja, referred to CCTV footage of the incident at North Wollongong Hotel on 31 August 2007 and replayed parts of the footage at Splashes around the time of the murder. Mr Austin submitted that there was nothing about Mr Bubanja’s conduct that evening that indicated that he was aware that there was about to be an attempt to shoot and kill the deceased.

126. Mr Austin relied on the fact that the last call recorded as having been made (as opposed to received) by Mr Bubanja on 8 September 2007 was made at 00.17.47, which was before the deceased arrived at Splashes and therefore could not have been the call to tip off Mr Koloamatangi that the deceased was either there or was leaving. The next call initiated by Mr Bubanja was not until 11.00.46 on 8 September 2007.

127. Mr Austin submitted that, even if Mr Bubanja had told Mr Popovic that the deceased was at Splashes during the 18-second call initiated by Mr Popovic at 00.50.56, more was required to establish that he was part of a joint criminal enterprise. Mr Austin also referred to the fact that Zoran Bubanja, with whom the deceased was alleged to have a disagreement, had not been charged and that it was Zoran Bubanja who was said to owe money to the deceased. Mr Austin submitted that bad blood between the men could not reliably be inferred from the CCTV footage taken at the North Wollongong Hotel since the body language may have reflected no more than a transient disagreement.

128. Mr Austin described Mr Radz’s evidence of admissions said to have been made by Mr Bubanja as “an evil concoction” by a man with every reason to lie. He also relied on the disparity between Mr Radz’s evidence of the content of the admissions and the objective facts, including that, according to Mr Radz, Mr Bubanja said that he followed the deceased to Splashes and called Mr Popovic to tell him that the deceased was there, when the evidence established that Mr Bubanja arrived at Splashes before the deceased and that Mr Bubanja did not call Mr Popovic at all from Splashes. Mr Austin told the jury that there was not enough evidence against Mr Bubanja unless they accepted Mr Radz’s evidence, which was so exaggerated and unreliable that they could not safely accept it.

129. Mr Austin referred to Mr Taylor’s evidence and submitted that the evidence of “Dragan” being a “dog” in a conversation involving Mr Bubanja was too vague to be reliable as a motive, as was the evidence of the gathering in the Woolworth’s car park. Mr Austin said that the conversation in which Mr Popovic was said to have told Mr Bubanja that “Herbie [Mr Taylor] did it” cannot be a reference to the deceased’s murder since Mr Taylor obviously did not do it. Furthermore Mr Austin submitted that the conversation did not support Mr Bubanja’s involvement in the murder.

130. Mr Austin submitted that the CCTV footage from Splashes showed that the deceased and Mr Bubanja were on good terms and that it appeared that Mr Bubanja was going to leave with the deceased in a taxi.

Address on behalf of Mr Koloamatangi

131. Ms Davenport took the jury through Ex G and submitted that it showed that Mr Taylor’s evidence about his movements that night was wrong. She highlighted the fact that, although Exhibit G showed a “flurry” of telephone calls at the relevant time, none was to Mr Koloamatangi, whom one might expect to be the most important person to whom contact ought be made. Ms Davenport highlighted Mr Taylor’s motive to lie arising from the fact that he was pulled over by police in 2012 with drugs in the car and wanted and needed the indemnity. She submitted that all that the Crown had against Mr Koloamatangi was Mr Taylor’s evidence.

265. The trial judge did not summarise the defence cases individually at all. Indeed, at SU 155 the trial judge referred to “the defence case” as if there was only one. This may have led the jury to consider that all the accused were in the same position notwithstanding the standard direction given by the trial judge at the commencement of the summing up at SU 3 that they needed to consider the case of each accused separately and bring in separate verdicts. For the reasons given by Street CJ in R v Towle at 340, a general direction that each case be considered separately is insufficient to discharge the obligation to put the case of each accused separately to the jury in the summing up.

Conclusion on unbalanced summing up ground

269. I am satisfied, on the basis of the cumulative effect of the matters listed above, that the trial judge impermissibly instructed the jury as to how they could reason towards a verdict of guilt for each of the applicants by accepting the evidence of Mr Taylor. The effect of the summing up effectively deprived the applicants of the benefit of the warning to which they were entitled under s 165(1)(d) of the Evidence Act in respect of Mr Taylor’s evidence. The trial judge failed to distinguish between the cases made by each applicant in summarising “the defence case”.

270. For the reasons set out above, I am satisfied that the summing up was such as to deprive each of the applicants of a fair trial.

271. In these circumstances it would be inappropriate to apply the proviso to s 6 of the Criminal Appeal Act since, for the reasons given above, the applicants have been, in important respects, denied procedural fairness: Weiss v The Queen [2005] HCA 81; 224 CLR 300 at [45]. They have not had the benefit of a fair trial.

272. In light of my conclusion, it is not necessary to deal with the additional ground raised on behalf of Mr Popovic: that a miscarriage of justice was occasioned by the failure of the trial judge to discharge the jury after the trial judge’s comments at SU 119-120.

Unreasonable verdict grounds

273. Two of the applicants, Mr Bubanja and Mr Hristovski, press unreasonable verdict grounds, which, if made out, would result in a verdict of acquittal being entered in each case.

The relevant principles

274. The principles which must be applied in determining whether a verdict “is unreasonable or cannot be supported” within the meaning of s 6(1) of the Criminal Appeal Act were authoritatively determined by the majority in M v The Queen (1994) 181 CLR 487 at 493. The question the court must ask itself is:

“… whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

275. In answering that question:

“… the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”

276. The majority also said in M v The Queen at 494-495:

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.”

277. The majority view in M v The Queen has been reiterated and applied by the High Court and remains the law: MFA v The Queen [2002] HCA 53; 213 CLR 606 at [55]-[58]; SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11]-[14]; and Filippou v The Queen at [12].

The weight to be given to the jury’s advantage

278. The passage set out above from M v The Queen requires an appellate court to consider whether a jury’s advantage is capable of resolving any doubts which the appellate court might have. This consideration is more complicated in the present application because of the number of grounds of appeal. Where the sole ground of appeal is that the verdict is unreasonable or cannot be supported and there is no challenge to the directions given by the trial judge, the weight to be given to the jury’s verdict may be considerable: R v Baden-Clay [2016] HCA 35 at [65]-[66]. But where an appellate court finds that a jury has been misdirected or that there has been a relevant miscarriage of justice, the position is otherwise since the assumption is to be made that the jury follows the directions of the trial judge: Demirok v The Queen (1977) 137 CLR 20 at 22 per Barwick CJ.

279. In such circumstances, the weight to be attributed to a jury’s verdict may be relatively slight (SKA v R (No. 2) [2012] NSWCCA 205 per Adams J at [311], Hislop J agreeing, Beazley JA dissenting on other grounds). In some circumstances, the jury’s advantage ought be excluded from consideration in this exercise altogether, as was found to be appropriate in R v Ortega-Farfan [2011] QCA 364; 215 A Crim R 251 where Fraser JA said at [75] (Chesterman JA and Mullins J agreeing):

“I am not persuaded that the doubt is one which is capable of resolution by reference to the advantage of the jury in seeing and hearing the complainant and the other witnesses give evidence. The jury must have found that the complainant was a reliable and credible witness. Her demeanour might well have suggested to the jury that she was a truthful witness. But her demeanour could not resolve the doubt about the reliability of her account which arises from the inconsistencies and weaknesses apparent on the face of the record. In any event, the jury’s verdict should not be taken into account in this exercise because the jury might have attributed substantial weight to the evidence of the covert conversations which should not have been admitted.”

[Emphasis added.]

280. There are common elements to the determination whether a verdict was unreasonable and the task of determining whether there has been a substantial miscarriage of justice (Weiss v The Queen at [41]). The limitations on the use to be made of a jury’s verdict in determining whether there has been a substantial miscarriage of justice are also relevant to an unreasonable verdict ground. In Cesan v The Queen [2008] HCA 52; 236 CLR 358 the plurality (Hayne, Crennan and Kiefel JJ; Gummow J agreeing) said at [129]:

“In many cases where the proviso is to be considered, the fact that the jury returned a guilty verdict will indicate rejection of any explanation proffered by the accused in evidence. In the present cases, however, the relevant hypothesis is that the jury did not pay attention to all of the evidence led at trial. In particular, the jury was distracted when one of the two accused persons was giving his evidence. In those circumstances, it is not possible, in these cases, to place any weight upon the fact that the jury returned its verdicts of guilty.”

The task of the appellate court in the present case

281. The task of this Court is to consider the whole of the evidence against Mr Hristovski and Mr Bubanja and decide whether it thinks that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the particular applicant was guilty. If this Court experiences a doubt in that process, it is required to consider whether the doubt is one that the jury, too, ought to have experienced. It is only when the Court considers that the doubt could have been resolved by the jury by hearing and seeing the witnesses that it may conclude that there has been no miscarriage of justice.

282. In respect of the last-mentioned matter, Ms Rigg and Mr Game submitted that, although the jury had the advantage of seeing and hearing Mr Taylor, they were, in effect, misdirected by the trial judge in the summing up and therefore no, or little, weight ought be given to their verdict in the event that this Court experiences a doubt as to Mr Hristovski’s or Mr Bubanja’s guilt. Accordingly, they contended that any allowance made by this Court for the jury’s advantage ought also take into account the disadvantage to which they were subjected by reason of the unbalanced summing up and erroneous direction as to the hearsay matter.

The evidence against Mr Hristovski

283. Apart from the telephone records, the evidence against Mr Hristovski was largely comprised of Mr Taylor’s evidence that he and Mr Koloamatangi had gone to his house at Warrawong on the night of the murder, after their first trip to Sydney, and collected a gun, which was used by Mr Koloamatangi to shoot the deceased. Mr Taylor’s credibility was the principal issue as far as Mr Hristovski was concerned.

284. Although this Court does not have the advantage of seeing and hearing Mr Taylor give evidence or observing his demeanour, it is not thereby precluded from making any assessment of his credibility, in the sense of reliability. Lord Pearce said in Onassis & Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 at 431:

“‘Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by over much discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”

285. Several of the matters referred to by Lord Pearce arise for consideration when Mr Taylor’s evidence is assessed, including: motive in minimising his involvement and exaggerating that of others; antipathy towards Mr Hristovski arising from the assault in April 2009; his own criminal involvement in respect of which he sought indemnity; the passage of time since the events occurred; inconsistencies between his statements at various times and his sworn evidence; inconsistencies between his evidence and objective or incontrovertible evidence; and inconsistencies between his evidence and contemporaneous notes made by others.

286. The evidentiary matters particularly relied upon by Ms Rigg as bearing on whether it was open to the jury to find Mr Hristovski guilty beyond reasonable doubt are addressed in turn below.

When the gun was collected

287. Mr Taylor gave evidence that Mr Hristovski was not involved in the dinner at Kings Chinese Restaurant in Wollongong on the evening of 7 September 2007. However, Detective Ritchie recorded in a note made on 1 June 2012 after meeting with Mr Taylor that Mr Hristovski was at the dinner and that he and Mr Koloamatangi went to Mr Hristovski’s house after dinner to collect the gun before they delivered Mr Koloamatangi’s girlfriend to Sydney that evening. Although Detective Ritchie accepted that he could have got the sequence of the trip to Sydney around the wrong way, he recalled that Mr Taylor had told him that Mr Hristovski was at the dinner at Kings. This evidence was inconsistent with all other evidence, including Mr Taylor’s own evidence at trial.

The sequence of events on the evening of 7 and 8 September 2007

288. Mr Taylor’s evidence in chief was that he and Mr Koloamatangi went to Mr Popovic’s unit after travelling back from Sydney, arrived there at about 10.30pm or 11pm and stayed there for about an hour before going to Warrawong to collect “something” from Mr Hristovski’s house.

289. This version is inconsistent with the telephone records which showed that Mr Taylor and Mr Koloamatangi were still in the footprint of the Rockdale tower (heading south) at 11.58pm; the Loftus tower at 12.14am and in the Wollongong area at 12.46am, 12.49am, 12.55am and 1am. The call at 12.49am from Mr Koloamatangi to Mr Popovic was, accordingly, likely to have been made before they arrived at Mr Popovic’s place.

290. Mr Taylor’s evidence was that while they were at Mr Popovic’s unit, he overheard a conversation between Mr Popovic and Mr Koloamatangi in which Mr Popovic instructed them to get “something” from Jason’s [Mr Hristovski’s] house. Mr Taylor also gave evidence that he overheard a reference to “Dragan” [the deceased] being at the “North Gong” Hotel.

291. As referred to above, the CCTV footage established that the deceased arrived at the North Wollongong Hotel at 12.26.38pm and left at 14.26.15pm on Friday 7 September 2007. Accordingly he was long gone from the hotel when Mr Popovic is alleged to have told Mr Koloamatangi in a conversation said to have been overheard by Mr Taylor that the deceased was still there.

292. Moreover, the CCTV footage showed that when the deceased arrived at Splashes at 0.30.31 on 8 September 2007, Mr Bubanja was already there. Mr Bubanja and Mr Popovic spoke, after that time at 00.50.56 and 1.06.52, when it can be inferred that Mr Bubanja knew that the deceased was at Splashes. Given the telephone records referred to above, it can be inferred that, if Mr Taylor and Mr Koloamatangi in fact went to Mr Popovic’s place on 8 September 2007, they arrived after at least the first call (at 00.50.56). There is no explanation for Mr Taylor’s evidence that he overheard that the deceased was at the “North Gong” Hotel, except, possibly, that he became aware that the deceased often went there on a Friday or possibly that he misheard some reference to the deceased having been at the hotel earlier in the day.

The fact and timing of the visit to Mr Hristovski’s on 7-8 September 2007

293. Mr Taylor’s evidence in chief was that he arrived at Mr Hristovski’s around midnight, which he confirmed was about a 15-minute drive from Mr Popovic’s unit. His evidence was that he had tried to call Mr Popovic from Mr Hristovski’s cul-de-sac and that the call was made at 00.49 on 8 September 2007. The records of Mr Taylor’s phone did not disclose such a call being made. Mr Taylor’s evidence was that he used Mr Koloamatangi’s phone to make the call and that he was certain that he made the call from the cul-de-sac. However, the timing of this call did not fit the movements of his return to Wollongong from Sydney with Mr Koloamatangi since he was still north of Wollongong at 1am.

294. The telephone records do not include any call from Mr Taylor’s or Mr Koloamatangi’s phone which shows that they were in range of the telephone tower that covered Warrawong (where Mr Hristovski lived) at any relevant time.

295. Furthermore, the call by Mr Hristovski to Bubanja at 1.23am on 8 September 2007 was made from a location north of Mr Hristovski’s home since it passed through the Wollongong CBD tower, which does not cover Warrawong. Accordingly, the call could not have been made while he was at home. Although Mr Hristovski travelled south for a short period after this call (as shown by the calls between 1.29.15 and 1.50.29) into an area covered by the Berkeley tower, which covered Warrawong, there is no record of his returning to the area covered by the Berkeley tower after 1.50.29 until a call was made from his telephone at 3.30.44. This left a very short period, between 1.29.15 and 1.50.29 when Mr Hristovski could have been at home to hand over the gun. However, at 1.49.50 a call was made from Mr Koloamatangi’s phone through the Brokers Point tower, which is still some distance north of Wollongong.

296. The result of the telephone records is, in my view, that Mr Hristovski has shown that he was not at home at any time between the return from Sydney of Mr Taylor and Mr Koloamatangi and the shooting and therefore could not have provided the gun to them in that period.

Mr Taylor’s knowledge of where Mr Hristovski lived

297. Until almost the end of his evidence in chief, which was by and large adduced in chronological order, Mr Taylor made no mention that he had been to Mr Hristovski’s place before the trip to collect the gun and gave no explanation of how he knew where he lived. However, shortly before the commencement of his cross-examination, Mr Taylor gave the following evidence:

“Q. I think you've told the Court something of his [Mr Hristovski’s] address, is that right, the address you went to?

A. Yes.

Q. How did you know where to drive to?

A. I was shown earlier in the day. I think I drove there earlier with Zlatan.

Q. Do you recall the suburb?

A. I do. Now I do.

Q. What was the suburb?

A. Warrawong.

Q. What was the street address, do you recall?

A. It was XXX Blaxland Avenue.”

298. In cross-examination Mr Taylor said that he had not remembered the detail of the earlier visit on 7 September 2007 until about a week before giving evidence and that he had not made another statement about it or told the Crown Prosecutor about it. He agreed that he had made no mention of it in the seven or eight statements he had made to police previously. He could not remember what he was doing during the daytime on 5, 6 or 7 September 2007, including whether he was working on those days. He gave no explanation of why he thought he needed to know, or why Mr Popovic would want him to know, where Mr Hristovski lived. He agreed that he realised that there was a problem with his evidence in that there was no explanation as to how he knew how to get to Mr Hristovski’s house. I am not satisfied that the earlier trip to Mr Hristovski’s house with Mr Popovic to show him where he lived is other than a recent invention fabricated to add verisimilitude to his evidence that he had visited him on that night.

The appearance and type of gun

299. Mr Taylor described the gun as either silver or silver with a black handle. All the eyewitnesses at Splashes described it as black or dark. Mr Taylor initially described it to police in June 2012 as a snub-nosed 32 or similar, although this appears to have been at the same time as the detectives showed him a photograph of a gun downloaded from the internet. In his evidence at trial Mr Taylor described the gun as a short revolver, six bullets, like a “lady’s weapon” and with an Astra symbol on the handle.

300. Mr Taylor knew from his subsequent relationship with Ms Ewen what kind of gun Mr Hristovski had at the time of the shooting. I am not satisfied that Mr Taylor did not use this information to implicate Mr Hristovski when interviewed by police. The evidence Mr Taylor gave which implicated Mr Hristovski increased the value of his evidence to the Crown since it was a significant plank in the Crown case against Mr Hristovski, without which he would presumably not have been charged. I am not satisfied that his evidence about the appearance of the gun or its link with Mr Hristovski was reliable.

Assessment of the whole of the evidence against Mr Hristovski

301. The cumulative effect of the evidence and the matters raised by Ms Rigg causes me to have a doubt, which I consider to be reasonable, about Mr Hristovski’s involvement in the shooting. After having considered the whole of the evidence against Mr Hristovski, I am satisfied that his evidence about obtaining the gun from Mr Hristovski when Mr Hristovski was at home at Warrawong on the night of 7-8 September 2007 was incorrect. Indeed I have considerable doubt whether Mr Hristovski provided a gun to Mr Taylor at all and whether the gun in Mr Hristovski’s possession was used in the shooting of the deceased. I do not consider that the other evidence of his involvement, which is largely comprised of telephone records, to be sufficient to rebut a hypothesis consistent with innocence: that he was out on a Friday night with his friends after watching a movie at home in bed with his girlfriend.

302. I am concerned that Mr Taylor’s evidence in that regard was motivated by a desire to implicate Mr Hristovski in the killing and did not accord with what actually happened.

The weight to be given to the jury’s verdict

303. In the present case, the fact that the jury returned a guilty verdict in respect of Mr Hristovski probably indicates that it accepted the evidence of Mr Taylor as to both the provenance and provision of the gun. However, it did so after having listened to a summing up which I consider to have been so unbalanced as to deprive Mr Hristovski of a fair trial. As the trial judge did not distinguish between the cases of each of the accused, Mr Hristovski’s case was not summarised separately for the jury by the trial judge, which may have led the jury to believe that there was only one “defence case” and that if they convicted one accused, they ought convict each accused. The summing up also contained a material misdirection regarding hearsay evidence, which should not have been given. Moreover, I consider that the trial judge’s suggestion to the jury that the evidence about timing could, in effect, be disregarded, if the jury accepted Mr Taylor’s initial version to Detective Ritchie that he had collected the gun before the first trip to Sydney to have been such that no weight can be given to the jury’s verdict. In all the circumstances, I do not consider that any particular weight can be given to the jury’s verdict with respect to Mr Hristovski.

304. For these reasons, in my view it was not open to the jury on the whole of the evidence to be satisfied of Mr Hristovski’s guilt. I am persuaded that the verdict of guilty in respect of Mr Hristovski is unreasonable and cannot be supported having regard to the evidence. In my view, it should be quashed and a verdict of acquittal entered.

The evidence against Mr Bubanja

305. The evidence against Mr Bubanja comprised the following, which will be addressed in turn:

1. The evidence of the falling out between the deceased and Zoran Bubanja, Mr Bubanja’s father;

2. The visit to the deceased’s unit in May 2006;

3. The evidence of the gathering in the Woolworth’s car park two to three weeks before the shooting;

4. Exchanges at the North Wollongong Hotel on 31 August 2007;

5. The exchanges between the deceased and Mr Bubanja at Splashes on 7-8 September 2007, including the incident in the toilet;

6. The fact of the phone calls and attempted phone calls to and from Mr Bubanja on 7-8 September 2007;

7. The conversation two weeks after the shooting between Mr Popovic, Mr Bubanja and Mr Taylor; and

8. Mr Radz’s evidence of admissions made by Mr Bubanja both prior to, and after, the shooting.

The falling out between the deceased and Mr Bubanja’s father

306. The evidence established that there was a falling out between the deceased and Mr Bubanja’s father, Zoran, arising from the construction of units at Figtree some time prior to 2006.

The visit to the deceased’s unit in May 2006

307. The deceased’s wife gave evidence of her recollection of the visit to the building in which their unit is located. Her impression was that Zoran Bubanja was intoxicated and that he asked the deceased to come outside. When the deceased refused to come out, those outside left.

308. Mr Radz’s evidence about the visit was that those at the door, “Daki [Mr Bubanja], Dario and Zoran [Bubanja]” started kicking the doors and the others joined in. He deposed that there was no response from the deceased and that Zoran Bubanja had said, “You fucking dog, you’re dead.”

309. There is no apparent reason why the deceased’s wife would understate the seriousness of the incident. The Crown submitted that she might not have seen or heard what Mr Radz said occurred, or that with the passage of time she might have forgotten those details. However, that seems highly unlikely. By way of contrast, there was every reason why Mr Radz would exaggerate it, including the reward money, the nature and extent of the indemnity and his desire to have his bail application supported by the authorities. In these circumstances, I would not accept Mr Radz’s evidence about this interchange except to the extent that it is corroborated by the deceased’s wife.

Gathering in Woolworth’s car park two to three weeks before the shooting

310. Mr Taylor’s evidence at trial was there was an apparently unplanned gathering in the Woolworth’s car park in the course of which Mr Bubanja had referred to “Dusan and Dragan” as “dogs” who were “speaking to police”. Although Mr Taylor mentioned hearing a reference to “Dusan and Dragan” within a couple of weeks of the murder in his statement given on 14 June 2012, these words were neither attributed to Mr Bubanja in that statement; nor was there any connection made in the statement between the words and the location of the Woolworth’s car park; nor was there any reference to the word “dog” or police informant.

311. Having regard to the lack of pertinent detail in the statement of 14 June 2012, I do not consider that any particular weight ought be given to this evidence, even having regard to the potentially cumulative effect of circumstantial evidence.

The meeting at the North Wollongong Hotel on 31 August 2007

312. On 31 August 2007 Mr Bubanja, his father and the deceased were at the North Wollongong Hotel. The Crown contended that there was a heated exchange between Mr Bubanja and the deceased as depicted on the CCTV footage. Having viewed the footage I am unable to characterise the exchange in the way for which the Crown contended since I regard it as too ambiguous to draw such an inference. However, even if the exchange was heated, there is no way of knowing whether it related to the debt which the deceased’s wife said still owed by Zoran Bubanja to the deceased or to some other area of disagreement. Since the dispute about the debt had arisen more than a year previously, no firm inference can be drawn about whether it was the subject of the apparent disagreement between them on that day.

The exchanges between the deceased and Mr Bubanja at Splashes on 7-8 September 2007, including the incident in the toilet

313. Mr Harris, an off-duty security guard, gave evidence that he had seen the deceased and Mr Bubanja arguing that evening and described them as looking “agitated”, “intimidated” and “passionate” in the course of a discussion. He heard reference to a problem that “needed to be fixed”. However, the ultimate impression which Mr Harris got was that the two would “look after” each other. Mr Castagna saw them in the toilets and concluded that “an uncomfortable situation” had developed which was not violent but which involved two males swearing at each other.

314. Mr Walker, a security guard, gave evidence of an interchange (“a few words”) between the deceased and Mr Bubanja shortly before the deceased left Splashes that evening. The Crown referred to Mr Walker’s evidence that the deceased and Mr Bubanja “had a few words” and that “this bloke [the deceased] was in Daki’s face”. However, Mr Walker also said that he was not close enough to hear what they were saying. When it was put to him in cross-examination that the two may have been “joking around”, he said: “they may have been mucking around, I don’t know.” Mr Bolic, another witness, denied seeing “any dramas” that evening. Mr Vacic said that “everyone was pretty much happy and relaxed”. Mr Milisic, who had spent time drinking and talking with the deceased and Mr Bubanja, did not depose to any conflict between them.

315. Mr Somerville, a security guard, accepted that Mr Bubanja was “highly distressed” when he heard that the deceased was dead and tried to approach the deceased’s body until he was led away from the area by police.

The phone evidence involving Mr Bubanja on 7-8 September 2007

316. Mr Bubanja made a phone call to Mr Hristovski on 8 September 2007 at 00.17.47, before the deceased arrived at Splashes. He did not make another call until much later, in the morning of 8 September 2007 at 11.43.58, when he called Mr Popovic. That these calls were the only calls initiated by Mr Bubanja during the relevant period provides some indication that he was not the person who informed others that the deceased was at Splashes. However, even if he did, the evidence does not indicate that he had any awareness that the deceased was to be killed that night. There was a very substantial number of attempted communications by Mr Hristovski to Mr Bubanja that night, many of which were unsuccessful because of the poor or non-existent mobile reception at Splashes. These communications are consistent with Ms Ewen’s evidence that Mr Hristovski and Mr Bubanja were friends and that Mr Hristovski would often go out in the middle of the night either with Mr Bubanja, or to collect him and drive him home.

Conversation between Mr Popovic, Mr Bubanja and Mr Taylor a couple of weeks after the shooting

317. According to Mr Taylor, a week or two after the shooting, Mr Popovic and Mr Bubanja visited Mr Taylor at home and they went for a drive. They were speaking Serbian, which Mr Taylor did not understand. At one point, Mr Popovic, referring to Mr Taylor, said, “Herbie did it.” Mr Bubanja responded, “You’re a sick fuck” and shook his hand.

318. There are several difficulties with regarding this conversation as implicating Mr Bubanja in the murder of the deceased. First, as Mr Taylor did not understand Serbian, the context of the comments in English remains unknown. Secondly, there was no reference to the killing of the deceased that Mr Taylor could understand in the conversation. Thirdly, the Crown case was not that Mr Taylor “did it” since it was Mr Koloamatangi who was, on the Crown case, the gunman and Mr Popovic who organised it.

Mr Radz’s evidence of admissions made by Mr Bubanja both prior to and after the shooting

319. Mr Radz gave evidence of two admissions said to have been made by Mr Bubanja to Mr Radz. There was no prior mention of these admissions, which were not recorded in any of the statements taken by police who had interviewed Mr Radz.

320. The first admission was said to have been made some time prior to the shooting in which Mr Bubanja is said to have told Mr Radz that he could not wait until the deceased got out (of gaol) so that he could put a bullet in his head. Mr Radz’s evidence was that Mr Bubanja made the statement (that he could not wait until the deceased got out so that he could put a bullet in his head) “every day” and to “100 other people”, although he was unable to name a single person who had heard the statement. In my view, the reliability of this first admission was substantially impugned by the obvious exaggeration in Mr Radz’s evidence relating to it as well as Mr Radz’s motive in fabricating such an admission.

321. The second admission was said to have been made by Mr Bubanja to Mr Radz in 2009 or 2010 between Mr Radz’s release from gaol in April 2009 and his departure overseas in 2010. According to Mr Radz he went out to dinner at Latani’s restaurant in Wollongong CBD and Mr Bubanja was there. Mr Bubanja said to him:

“Did you hear what I did, I am the one that followed Dragan [the deceased] to Splashes and made the phone call for Doc to strike.”

322. There are two principal difficulties with this admission. First, Mr Bubanja did not follow the deceased to Splashes, since Mr Bubanja arrived at 23.27.39 on 7 September 2007 and the deceased did not arrive until 00.30.31 on 8 September 2007. Secondly, Mr Bubanja did not make a call between the time the deceased arrived at Splashes and the time he was shot. It is, in my view, not safe to put any weight on Mr Radz’s evidence of these two admissions which can, accordingly be disregarded for the purposes of performing the task set out in M v The Queen.

Whether a doubt is experienced by the appellate court

323. Having reviewed the evidence set out above, I have a doubt whether Mr Bubanja was part of a joint criminal enterprise to kill the deceased. I do not consider that the Crown excluded the hypothesis that Mr Bubanja’s conduct at Splashes was for a purpose unconnected with the deceased’s murder.

The weight to be given to the jury’s verdict of guilty in respect of Mr Bubanja

324. There are different considerations that apply to an assessment of the weight to be given to the jury’s verdict in respect of Mr Bubanja than apply to the verdict in respect of Mr Hristovski because of the differences between the evidence against them. Nonetheless the lack of balance in the summing up and the directions concerning Mr Taylor tended to compromise the verdicts in respect of all applicants. Mr Taylor’s credibility was important with respect to the conversation in the Woolworth’s car park as well as the congratulatory conversation after the shooting. Mr Radz’s credibility was substantially impugned for the reasons given elsewhere.

325. As I have said above, the trial judge’s failure to summarise the case of each applicant separately was particularly disadvantageous to Mr Hristovski and Mr Bubanja because the Crown cases against them were not as strong as against the other applicants. In these circumstances I do not consider that the doubt I experience with regard to the verdict with respect to Mr Bubanja could be resolved by any advantage that the jury enjoyed or that its verdict is entitled to weight in the circumstances of the summing up.

326. For these reasons, I am persuaded that the verdict of guilty in respect of Mr Bubanja is unreasonable and cannot be supported having regard to the evidence. In my view it was not open to the jury on the whole of the evidence to be satisfied of Mr Bubanja’s guilt. In my view, the verdict should be quashed and a verdict of acquittal entered.

Sentence appeals

327. As referred to above, Mr Bubanja has sought leave to appeal against his sentence. In the circumstances it is not necessary to address this application.

Proposed orders

328. I propose the following orders:

In respect of Mr Popovic, Mr Koloamatangi, Mr Bubanja and Mr Hristovski

1. Grant leave to appeal.

2. Allow the appeal.

3. Quash the conviction.

In respect of Mr Popovic and Mr Koloamatangi

1. Order that there be a retrial.

In respect of Mr Hristovski and Mr Bubanja

1. Enter verdicts of acquittal.

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Amendments

30 November 2017 - Previously restricted. Names of indemnified witnesses amended to pseudonyms.

Decision last updated: 30 November 2017