R v Popovic - [2017] NSWSC 145

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Popovic [2017] NSWSC 145
Hearing dates: 23 February 2017
Date of orders: 28 February 2017
Decision date: 28 February 2017
Jurisdiction: Common Law
Before: Harrison J
Decision:
Mr Popovic’s release application is refused.

Catchwords:
BAIL – release application – strength of the Crown case – whether unacceptable delay – assessment of anterior delay – failure to show cause why continued detention is not justified – release application refused

Legislation Cited:
Bail Act 2013

Cases Cited:
DPP v Mawad [2015] NSWCCA 227
Popovic v R [2016] NSWCCA 202

Category: Principal judgment
Parties: Crown (Applicant)
Zlatan Popovic (Respondent)
Representation:
Counsel:
P Barrett (Respondent)
Solicitors:
Toomey Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2016/316693
Publication restriction: Nil

Judgment

HIS HONOUR: Zlatan Popovic applies for bail. He has been in custody since 12 September 2012 when he was arrested and charged with the murder of Dragan Sekuljica on 8 September 2007. Mr Popovic was tried before R S Hulme AJ and a jury and convicted of murder on 29 May 2014. He was sentenced by his Honour to a term of imprisonment of 34 years. He remained in custody thereafter serving that sentence until 21 September 2016 when his conviction was quashed by the Court of Criminal Appeal and a new trial was ordered: Popovic v R [2016] NSWCCA 202. He has therefore remained in custody since then as a remand prisoner until the present time. His re-trial is scheduled to commence on 31 July 2017.
The Crown opposes bail. Mr Popovic is required to show cause why his continued detention is not justified. That is because murder is a show cause offence as defined in s 16B of the Bail Act 2013. The Crown maintains that even if Mr Popovic were able to show cause, his release application should be refused because he continues to pose an unacceptable risk in accordance with s 19 of the Act and because there are no conditions that could be imposed upon his release on bail that could eliminate or satisfactorily mitigate that risk.
Mr Popovic made a previous application for bail. The Crown concedes that in terms of s 74(3)(c) of the Act, circumstances relevant to the grant of bail have changed since the previous application was made and that Mr Popovic has grounds for a further release application in the terms of that section. In my opinion, that concession is properly made.

Show cause

Mr Popovic contends that he can demonstrate why his continued detention is not justified because the case against him is not strong and because of the unacceptable delay between his arrest and his scheduled re-trial.

Strength of the Crown case

As was pointed out in DPP v Mawad [2015] NSWCCA 227 at [19]:

“[19] Bail applications are not suitable forums to conduct mini trials. Nevertheless, an assessment of the strength of the Crown case is important to an assessment of prospective…

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 R v Popovic

Details

AGLC: R v Popovic [2017] NSWSC 145
Case: [2017] NSWSC 145
Decision Date: 28 February 2017

CaseChat Overview and Summary

The matter before the court involved an application for bail by the defendant, Popovic. The case was set to proceed in the criminal jurisdiction of the court, and the primary issue was whether the defendant should be granted bail pending the trial. The prosecution opposed the application, arguing that the Crown had a strong case against the defendant and that there was no acceptable reason for the delay in bringing the matter to trial.

The court was required to assess the strength of the prosecution's case against the defendant, consider the reasons for the delay in bringing the matter to trial, and determine whether the defendant had demonstrated sufficient cause to warrant their release from custody. The court had to weigh the interests of justice and the rights of the defendant against the need to ensure public safety and the proper administration of justice.

In its decision, the court considered the strength of the prosecution's case and found that it was compelling. The court also found that the defendant had not provided sufficient reasons for the delay in bringing the matter to trial and that there was no justification for the delay. The court further found that the defendant had not demonstrated sufficient cause why their continued detention was not justified. As a result, the court refused the defendant's application for bail. The court considered the interests of justice and the need to ensure public safety and the proper administration of justice in reaching its decision.

Orders