R v Popovic; R v Koloamatangi (No 3)

[2017] NSWSC 1110

Supreme Court

New South Wales

Medium Neutral Citation:	R v Popovic; R v Koloamatangi (No 3) [2017] NSWSC 1110
Hearing dates:	21 August 2017
Decision date:	22 August 2017
Before:	N Adams J
Decision:	The application to discharge the jury is refused.
Catchwords:	CRIMINAL LAW – murder trial – application to discharge jury – where widow of deceased gave evidence that the deceased had visited the accused Popovic in gaol – whether high degree of necessity to discharge the jury
Cases Cited:	Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 Mikael v Regina [2015] NSWCCA 294 R v Ahola (No 6) [2013] NSWSC 703 R v Bartle (2003) 181 FLR 1; [2003] NSWCCA 329 R v Glennon (1992) 173 CLR 592 R v Hunter (No 8) [2014] NSWSC 1151 R v Mark William Helmhout & Anor [2000] NSWSC 218 R v Qaumi (No 40) [2016] NSWSC 807 R v Rogerson; R v McNamara (No 34) [2016] NSWSC 259 R v Scott (No 1) [2015] NSWSC 458 Santo v R [2009] NSWCCA 269
Category:	Procedural and other rulings
Parties:	Regina (Crown) Zlatan Popovic (Accused) Tevi Koloamatangi (Accused)
Representation:	Counsel: Mr P Barrett (Crown) Mr L Brasch (Accused Popovic) Ms C Davenport SC (Accused Koloamatangi)   Solicitors: Solicitor for Public Prosecutions (Crown) Toomey Lawyers (Accused Popovic) Katsoolis & Co (Accused Koloamatangi)
File Number(s):	2012/00232565; 2012/00370471

Judgment

1. On 7 August 2017, Zlatan Popovic and Tevi Koloamatangi pleaded not guilty before me to one charge that on 8 September 2007 they did murder Dragan Sekuljica. A jury was empanelled and the trial has proceeded since that date.

2. On 21 August 2017, evidence was given by the wife of the deceased, Snezana Sekuljica. Counsel for Mr Popovic, Mr Brasch, made application following her evidence that the jury be discharged. Submissions were made at that time. Given that arrangements had been made for the next witness to give evidence by way of audio-visual link, counsel agreed that that witness and another witness should give their evidence and then the jury be sent home to allow the application to be further ventilated. After those two witnesses gave evidence, I heard further submissions and reserved my decision for consideration overnight.

The evidence

3. The deceased was shot and killed at Splashes Nightclub in Wollongong in the early hours of the morning on 8 September 2007. The Crown case is that Mr Popovic paid Mr Koloamatangi to shoot the deceased. The motive for the murder is said to flow from a dispute between the deceased and Zoran Bubanja of which Zoran Bubanja’s sons Daki and Marko were aware. Mr Popovic had been friends with the deceased, but at some point switched allegiance and supported the Bubanjas in the ongoing dispute. Evidence of this ill will has been adduced in the Crown case and it is anticipated that further evidence relevant to the dispute is still to be adduced.

4. The Crown has also tendered a table setting out call charge and reverse call charge records. It is anticipated that there will be expert evidence explaining those records. The table shows telephone contact between the phone services used by relevant persons leading up to, during and after the shooting.

5. There is CCTV footage of the shooting. However, that footage does not permit identification of the shooter beyond what he was wearing in general terms. Bystanders have described the appearance of the shooter, but in circumstances where the shooter was wearing a black balaclava and a dark-coloured hooded jacket it is not possible to make any identification.

6. The Crown case relies to a significant extent on the evidence of two men who have received indemnities in exchange for giving evidence for the prosecution.

7. The first of the two indemnified witnesses is known in these proceedings as Peter Taylor. He has already given evidence that he was a friend of Mr Popovic at the relevant time and that he used to work in the pizza shop owned by Mr Popovic’s mother, Mamma’s Pizza. Mr Taylor gave evidence that he was using and selling drugs around this time. He gave evidence that Mr Popovic requested his loyalty and that he unwaveringly did what was expected of him. This included driving Mr Koloamatangi to collect the murder weapon from a man named Jason Hristovski and then driving Mr Koloamatangi to his own (that is, Mr Taylor’s) house to obtain appropriate clothing. He then drove Mr Koloamatangi to the scene of the intended shooting, having received information from Mr Popovic as to the deceased’s whereabouts. After Mr Koloamatangi shot the deceased, Mr Taylor then drove him to his home in Mascot and subsequently conveyed money from Mr Popovic to him as payment for the shooting.

8. It was suggested to Mr Taylor in cross-examination that he was not where he said he was at a relevant time that evening because he was in fact assisting Mr Koloamatangi to sell drugs.

9. The next witness to be called by the Crown is a man known in these proceedings as Johnny Radz. It is anticipated that Mr Radz will give evidence that, in April 2007, Mr Popovic offered him money to shoot the deceased, which he declined. It is also anticipated that he will give evidence that Mr Popovic made certain admissions to him after the deceased was killed. It is further anticipated that Mr Radz will give evidence that Mr Koloamatangi made admissions to him at a time when both men were in custody. Mr Radz was in custody between June and October 2007.

10. Another witness has given evidence that she used to be the girlfriend of Mr Hristovski, that he owned two guns, and that he was a friend of both of the accused men. She later formed a relationship with Mr Taylor.

11. I have been provided with a number of statements in the course of the trial in order to rule on various parts of the evidence. It is apparent that many of the witnesses have made statements that contain evidence of other criminality in which Mr Popovic was said to be involved. Mr Popovic was in custody serving a sentence from 1999 to 2007.

12. Against this background, the evidence that has led to this application to discharge the jury is as follows. Mrs Sekuljica gave evidence of an occasion one week prior to the deceased’s death when she overheard the deceased and Mr Popovic having an argument over the telephone. There was swearing and the deceased called Mr Popovic a “traitor” in Serbian. Mr Popovic invited the deceased to meet him at Mount Kiera to sort it all out. The Crown Prosecutor then asked Mrs Sekuljica a number of questions in chief as to the deceased’s relationship with Mr Popovic as follows:

“Q. Now your husband knew Mr Popovic?

A. Yes.

Q. Had they been friends?

A. Yes.

Q. How long before your husband's death had they been friends?

A. A while, because I knew that Dragan went to see him in gaol a few times, and then when he came out they were together all the time.

Q. Now had they at some point more recently your husband's death had a falling out?

A. Did they have a falling out?”

[emphasis added]

13. The examination then moved to other topics. Defence counsel both cross-examined the witness and then she was excused. The Crown Prosecutor then called his next witness – a ballistics expert – at which time Mr Brasch indicated that he wished to raise something about that witness and the jury were asked to return to the jury room.

Submissions on behalf of Mr Popovic

14. Mr Brasch submitted that the evidence given by Mrs Sekuljica could only lead the jury to understand that Mr Popovic had been imprisoned for another matter; that is, that he could not have been on remand for this offence. Although the jury will need to know that Mr Koloamatangi was in custody for a different matter, given that the evidence by Mr Radz pertains to admissions at a time when he and Mr Koloamtangi were in custody together in 2008, there was no need for the jury to know that Mr Popovic had been in custody for a matter other than the Splashes murder.

15. It was submitted that the difficulty created by the evidence of Mrs Sekuljica is that it suggests that Mr Popovic was serving a sentence of some length, given that she said that the deceased had visited Mr Popovic in gaol “a few times”. It also suggested that the friendship extended through a lengthy period in circumstances where Mr Brasch’s instructions are that it was not a long-standing friendship.

16. Mr Brasch submitted that additional prejudice flowed to Mr Popovic from a combination of matters suggesting that he associated with people who had been in custody and who had used drugs. There is evidence that Mr Radz was a friend of Mr Koloamatangi, who had also been in custody. There has also already been evidence that Mr Popovic and Mr Koloamatangi were involved in drugs through the evidence of Mr Taylor. It was submitted that the cumulative effect of these matters would inevitably lead the jury to understand that Mr Popovic may have committed an offence that warranted a period of imprisonment. Mr Brasch submitted that the jury would reason that Mr Popovic is not just a person of bad character, but that he is more likely to have been involved in the murder of the deceased because he had spent time in custody.

17. Mr Brasch also submitted that he was at a forensic disadvantage because his instructions were that the deceased had never visited Mr Popovic in gaol and that that was something that could be ascertained from custody records. Unfortunately, he was not in a position to be able to test that aspect of the evidence before the jury as it would only highlight the prejudicial evidence given by Mrs Sekuljica. He submitted that, on his instructions, the friendship was not a lengthy one, while the answer given by the deceased’s widow suggested that it had been a friendship of some years’ duration.

18. In response to a question from me as to whether any identified prejudice could be cured by direction, Mr Brasch indicated that his preference would be that no direction at all be given to the jury about Mrs Sekuljica’s evidence in the event that his application was unsuccessful.

Submissions on behalf of the Crown

19. The Crown Prosecutor commenced by observing that the Crown case is not that this was a one-off “crime of passion”, but rather that it was a planned and organised “hit” carried out by a man who was contracted to do so. In those circumstances, the jury would hardly be surprised at a suggestion that the accused were involved in some form of criminal activity. He submitted that the Crown has been “at pains” to avoid suggesting that the accused men were involved in other criminal activity, while Mr Koloamatangi relies upon a defence that he was selling drugs at the time of the murder of the deceased. He noted that the jury has already heard that Mr Popovic’s friend Mr Taylor was dealing in drugs and involved with other persons who were dealing in drugs and involved in criminal activity at the relevant time.

20. It was submitted that, in light of such evidence, the level of prejudice flowing to Mr Popovic from Mrs Sekuljica’s utterance is very different to that which may arise in a different trial. He noted that it is anticipated that it will be put to Mr Radz in cross-examination that he is a criminal with an extensive criminal history who has spent considerable time in custody. That witness was a friend of both of the two accused.

21. It was submitted that one slip from the witness pales into insignificance in comparison with those matters and with the nature of the offence charged.

22. It was conceded by the Crown Prosecutor that no evidence was led at the previous trial as to how long the deceased and Mr Popovic had been friends.

23. The Crown and both defence counsel agreed that if I were to accede to Mr Brasch’s application the trial could not proceed against Mr Koloamatangi alone and that the trial against both men would have to start anew.

Consideration

24. As Bellew J observed in R v Rogerson; R v McNamara (No 34) [2016] NSWSC 259 at [38], incidents of the present kind are not uncommon in criminal trials. Regrettably, it is not unusual that irrelevant or otherwise inadmissible material relating to the accused’s past criminality, reputation, or prior contact with the criminal justice system comes to be before the jury. This is particularly so in cases where the witnesses and the accused have been involved in the criminal milieu and steps are taken to minimise the extent to which such evidence is before the jury. In such cases, evidence that suggests prior criminality on the part of an accused person may fall from a witness inadvertently or deliberately.

25. The relevant test for me to apply in determining this application is that set out by the High Court in Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 (“Crofts”). Before discharging the jury in this trial, I am required to be satisfied that there is a "high degree of necessity" to do so. As the plurality (Toohey, Gaudron, Gummow and Kirby JJ) observed in that decision (at 440):

"No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact."

26. This issue has been considered in a number of decisions of the Court of Criminal Appeal (“CCA”). In R v Bartle (2003) 181 FLR 1; [2003] NSWCCA 329, the trial judge refused an application to discharge the jury in circumstances where a co-accused gave evidence disclosing that the accused had a criminal record and had been in gaol. An application to discharge the jury in those circumstances was refused. The CCA found no error in the exercise of that discretion. In Santo v R [2009] NSWCCA 269, an accused person disclosed in cross-examination that she had been in custody. The trial judge refused to discharge the jury and again the CCA held that that decision was one open in the exercise of the trial judge’s discretion. The relevant principles were more recently applied by the CCA in Mikael v Regina [2015] NSWCCA 294 at [43].

27. I have had regard to a number of first instance decisions of this Court concerning similar applications.

28. In R v Ahola (No 6) [2013] NSWSC 703, Button J declined to discharge the jury in circumstances where an expert fingerprint witness had suggested that the accused had a prior criminal history. His Honour observed the following at [17]:

“My review of some of the leading authorities shows that the High Court of Australia and the Court of Criminal Appeal of New South Wales do not require or encourage trial judges to take an overly sensitive approach to the accidental receipt of prejudicial material. That review also shows that in many circumstances a direction is an appropriate remedy, not the discharge of the whole jury, although of course every case will turn upon its own facts.”

29. In R v Qaumi (No 40) [2016] NSWSC 807, Hamill J refused a discharge application brought by one of the accused after a witness referred to that accused having just been released from gaol at a certain time. His Honour noted at [9] that the evidence was not relevant and had a capacity to cause prejudice to the accused, which prejudice lay not only in the accused’s in fact having been in custody but in the potential for speculation as to the reason he was in custody. However, his Honour considered that, having regard at [16] to the amount of evidence in the trial and the uncontested evidence of the accused’s membership in an organisation involved in criminal activity, the evidence would not be “left vividly etched in the mind of the jury” (using the words of the High Court in Crofts at 441).

30. In R v Hunter (No 8) [2014] NSWSC 1151, Button J considered an application to discharge the jury on the basis that a witness had given inadmissible opinion evidence to the effect that the accused had a reputation for violence. For a number of reasons, his Honour was not satisfied that there was a high degree of necessity for the jury to be discharged. His Honour observed, at [31], that the utterance of the witness was not the only material before the jury that would reflect adversely on the character of the accused. He considered that the remark would not have the effect of “…tipping the trial over to the point where it cannot proceed further before this jury.” The jury had already been warned against prejudice and his Honour proposed, at [34], to give a further direction to disregard extraneous expressions of opinion by witnesses.

31. Justice Wilson considered a discharge application in R v Scott (No 1) [2015] NSWSC 458 following evidence given by a witness to the effect that he had known the accused “…from in and out of gaol a few times.” Her Honour found that the characteristics of the particular witness rendered it unlikely that the jury in fact heard the evidence. Nevertheless, her Honour observed at [19] – [20]:

“Whilst lawyers readily understand the risks of reference to ‘gaol’ and so forth, ordinary members of the public generally do not have the same comprehension of bad character evidence and what it may mean.

If the jury or some members of the jury heard that evidence it is unlikely, for them, to have the significance that it has for lawyers but, even if it does, I do not agree with the submission that it is incapable of cure.”

32. Her Honour considered that a direction to disregard the custodial status of the accused at any particular time would be sufficient to cure any prejudice potentially occasioned by the utterance of the witness.

33. In R v Rogerson; R v McNamara (No 34) [2016] NSWSC 259 at [38], Bellew J declined to discharge the jury in circumstances where a witness, seemingly deliberately, described one of the accused as being a “drug dealer”. His Honour found no difficulty in giving a direction to the jury that such evidence is to be ignored.

34. I have had regard to the relevant principles as well as to their application in these single judge decisions. There is no doubt that the test of "high degree of necessity" to discharge a jury involves a discretionary decision in relation to which judicial minds may differ. I am required to balance a number of factors in exercising this discretion, including the stage that the proceedings have reached, the extent of the prejudice to Mr Popovic, and whether any perceived prejudice can be cured by either direction or other practical steps.

35. Turning first to the actual words said by the witness, it is to be noted that the answer was, in part, non-responsive. That is, the witness volunteered more than the Crown Prosecutor was seeking to elicit. Although the relevant paragraph of her statement describes the friendship between the deceased and Mr Popovic as having arisen out of the visits by the former to the latter in custody, that evidence was not given at the previous trial. The evidence was elicited by the Crown Prosecutor, not by the accused Mr Popovic, and no blame rests with him. Nor am I satisfied, however, that any blame rests with the Crown Prosecutor. To quote Bell J (as her Honour then was) in R v Mark William Helmhout & Anor [2000] NSWSC 218 at [5], “No question arises of any impropriety or sharp practice on the part of the Crown Prosecutor…”

36. I have had regard to the submission made on behalf of Mr Popovic that it is the reference to the deceased’s visiting Mr Popovic “a few times” that poses the difficulty because it suggests a long-standing friendship (which is contrary to Mr Brasch’s instructions) and that Mr Popovic must have been sentenced for a serious offence if the deceased was able to visit him more than once. I am not satisfied that that is necessarily the case. Although I was informed during this application that Mr Popovic was in fact in custody serving a sentence between 1999 and 2007, I am not satisfied that the reference to the deceased’s having visited him “a few times” suggests anything like the true situation. That is not to say that the suggestion that Mr Popovic was in custody is not of concern, but simply that I am not satisfied the jury would necessarily infer that he had served a lengthy sentence for a serious offence.

32. I have had particular regard to the competing submissions of the Crown Prosecutor and counsel for Mr Popovic as to the significance to this application of the fact that there is already other material before the jury suggesting that Mr Popovic was part of a criminal milieu. Mr Brasch relied upon the fact that prosecution witnesses have already given evidence that gives rise to a certain level of prejudice, and that more such evidence is anticipated, in support of his application that this “slip” by Mrs Sekuljica is particularly prejudicial. The Crown Prosecutor, on the other hand, submits that the slip is relatively inconsequential in the context of the nature of the offence charged and the other evidence that has already been given and that is expected to be adduced, including that Mr Koloamatangi has been in custody, that both informers were involved in criminal activity, that Mr Radz had been in custody, and that Mr Popovic was friends with these people (and with Mr Hristovski, who on the Crown case supplied the gun).

33. I have had regard to the circumstances in which the impugned answer was given by Mrs Sekuljica. There was no audible reaction from anyone at the Bar table or the jury at the time. Mr Brasch, in his usual professional manner, suggested that the reason that he wished to raise a matter in the absence of the jury related to a different witness. Two further witnesses have given evidence since then and the next witness is anticipated to be in the witness box for the rest of the week. The lack of any particular attention being drawn to the answer after it was given is a further matter to take into account when assessing the degree of any prejudice to Mr Popovic.

34. Another matter I have taken into account is that, in R v Qaumi (No 40) at [20], R v Hunter (No 8) at [38] and R v Scott (No 1) at [25], Hamill, Button and Wilson JJ respectively considered that it was appropriate to provide a copy of the transcript to the jury with the inadmissible evidence removed. Hamill J relied upon s 55C of the Jury Act 1977 (NSW), which provides that, “A copy of all or any part of the transcript” may be provided to the jury if the judge considers it “…appropriate and practicable to do so.” Button J relied upon a discretion to delete discreetly inadmissible material from the copy of the transcript provided to the jury. If the jury requested a copy of the transcript of the evidence of Mrs Sekuljica in the present trial, I would not provide them with the transcript of the words appearing after the answer “A while” in the portion of the relevant transcript extracted above at [12].

35. Finally, I have had regard to the timing of this application. 28 witnesses have been called thus far, including a witness suspected to have been criminally concerned in the offence charged who gave evidence over four days. I have made certain protective orders in relation to that witness. Clearly, the timing of the application would not be relevant if I were satisfied that an incurable prejudice had been occasioned. Despite this, and consistent with what the High Court observed in Crofts, the timing of the application is nonetheless one of many relevant factors that may be taken into account in the exercise of my discretion. It seems to me that it is relevant that the impugned evidence was volunteered just before the start of the evidence of a significant “informer” witness, whom it is expected will give evidence over some days. In this context, the isolated words of Mrs Sekuljica would not be given any particular prominence.

36. Having considered the relevant authorities and the submissions of counsel, I am not persuaded that there is a high degree of necessity to discharge the jury in this matter. It is regrettable that the witness volunteered the basis upon which the friendship between Mr Popovic and the deceased commenced. The witness gave evidence consistent with her statement, which she made to police ten years ago. In hindsight, consideration should have been given to leading this evidence from the witness. I had earlier ruled that some of her statement on a separate issue was inadmissible and the Crown Prosecutor was invited to confer with her to make that clear.

37. Although the slip was regrettable, I am not satisfied that any potential prejudice arising from it could not be cured by a direction. As Brennan J (as His Honour then was) observed in R v Glennon (1992) 173 CLR 592 (at 614-615):

“Of necessity, the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts is that the reliance is not misplaced.”

43. Similarly, in Gilbert v R (2000) 201 CLR 414; [2000] HCA 15, McHugh J observed at [31]:

“The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one – accused, trial judge or member of the public – could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.”

44. I have had regard to the fact that if a direction is to be given to the jury, they could be reminded that they have sworn on oath or made an affirmation to reach their verdicts based solely on the evidence. The direction could include reference to the evidence suggesting that Mr Popovic may have been in gaol at some point and a statement to the effect that there are many reasons why a person may be in gaol. I could impress upon the jury that Mr Popovic’s custodial status at any particular time has absolutely nothing to do with this case and should be disregarded in the task of establishing whether the Crown has established whether either or both of the accused are guilty of the offence charged. The jury could be told that to do otherwise would not be fair to the accused and that if they were on trial they would want the same fairness shown to them.

45. Mr Brasch indicated that, in the event that the application was unsuccessful, his position was that he did not seek that the jury be given any direction. It is entirely a matter for him what course he wishes the Court to take in this regard. It is to be accepted that sometimes giving a direction only draws attention to the issue.  I will, however, hear him on the terms of an appropriate direction should he change his mind at any time during the trial.

46. The application to discharge the jury is refused.

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Decision last updated: 15 September 2017