Popovic v The Queen - [2017] NSWCCA 118

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Popovic v R [2017] NSWCCA 118
Hearing dates: 17 May 2017
Date of orders: 17 May 2017
Decision date: 02 June 2017
Before: Hoeben CJ at CL; Rothman J; Price J
Decision:
Application refused

Catchwords: BAIL – application to Court of Criminal Appeal following refusal of Bail by Supreme Court and pending re-trial after Court quashed conviction – Applicant charged with murder, being a show cause offence – serious threats to Police and the community – Court has Bail concerns relating to safety of the community and witnesses – Court not satisfied that Applicant would adhere to any conditions imposed – Court not satisfied that Applicant has shown cause as to why his detention is not justified – Bail refused
Legislation Cited: Bail Act 2013, ss 16A, 17, 18, 67
Cases Cited: Popovic v R [2017] NSWSC 145
Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202
Category: Principal judgment
Parties: Zlatan Popovic (Applicant)
Regina (Respondent)
Commissioner of Police on an interest relating to certain documents (Intervener)
Representation:
Counsel:
S Lawrence (Applicant)
M Cinque SC (Respondent)
R Bhalla (Commissioner of Police)
Solicitors:
Toomey Defence Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2016/316693
Publication restriction: Pending trial
Decision under appeal

Court or tribunal:

Supreme Court NSW

Jurisdiction:

Common Law

Citation:

[2017] NSWSC 145

Date of Decision:

28 February 2017

Before:

Harrison J

File Number(s):

2016/316693

Judgment

THE COURT: On 17 May 2017, the Court heard a release application from Zlatan Popovic, the applicant, and the Court refused bail. The Court reserved reasons, which we now publish.
The Court is required to deal with the question whether bail should be granted under the Bail Act 2013. The Court has jurisdiction to grant bail pursuant to the terms of s 67 of the Bail Act as the Court had ordered a new trial, which had not commenced, and bail had been refused by a single judge of the Supreme Court: s 67(1)(a) and (e) of the Bail Act.
The applicant faces charges, which include murder, and is required, pursuant to the terms of s 16A of the Bail Act, to show cause “why his … detention is not justified”.
The applicant is 45 years of age (having been born on 16 February 1972) and has a criminal history. He was convicted of manslaughter and nine charges of malicious wounding and sentenced on 19 December 2001 by O’Keefe J. On 25 March 2003, an appeal against sentence then imposed was dismissed.
On 8 September 2007, it is alleged that the applicant was involved with three co-offenders in the murder of Dragan Sekuljica at Wollongong. He has also been charged with a second offence, committed on the same day, being the shooting of Robert Gyles, a security guard, with intent to murder, also at Wollongong.
The applicant was charged and arrested on 12 September 2012, continued…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Popovic v The Queen

Details

AGLC: Popovic v The Queen [2017] NSWCCA 118
Case: [2017] NSWCCA 118
Decision Date: 02 June 2017

CaseChat Overview and Summary

The Court of Criminal Appeal heard an application for bail from the applicant, Popovic, who had previously been convicted of murder and had his conviction quashed by the Court. Popovic applied for bail pending his re-trial. He was charged with murder, a serious offence that posed a threat to police and the community. The Supreme Court had previously refused Popovic's application for bail, and he sought to have that decision overturned by the Court of Criminal Appeal.

The central legal issue before the Court was whether the applicant had demonstrated sufficient cause as to why his detention was not justified, considering the seriousness of the charges against him and the potential threat he posed to the community and witnesses. The Court had to weigh the applicant's right to liberty against the need to protect the community and ensure the proper administration of justice. In doing so, the Court had to consider the evidence presented regarding the applicant's likelihood of adhering to any bail conditions that might be imposed.

The Court found that there were significant concerns about the safety of the community and witnesses if the applicant were to be released on bail. The Court was not satisfied that Popovic would adhere to any bail conditions that might be imposed, given the seriousness of the charges against him and the potential risk he posed. The Court also found that Popovic had not demonstrated sufficient cause as to why his detention was not justified. As a result, the Court upheld the decision of the Supreme Court and refused Popovic's application for bail. The Court emphasised the need to protect the community and ensure the proper administration of justice in reaching its decision.

Orders