R v Popovic; R v Koloamatangi (No 4)

[2017] NSWSC 1137

Supreme Court

New South Wales

Medium Neutral Citation:	R v Popovic; R v Koloamatangi (No 4) [2017] NSWSC 1137
Hearing dates:	25, 28 August 2017
Decision date:	29 August 2017
Jurisdiction:	Common Law - Criminal
Before:	N Adams J
Decision:	The hearsay evidence of Emily Popovic is inadmissible.
Catchwords:	EVIDENCE – hearsay – maker unavailable – whether circumstances in which representations were made make it highly probably that representations are reliable – whether statements made against interest
Legislation Cited:	Evidence Act 1995 (NSW), ss 59, 65, 137
Cases Cited:	Conway (2000) 98 FCR 204; [2000] FCA 461 Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202 R v Suteski (2002) 56 NSWLR 182 R v Williams (2000) 119 A Crim R 490 Sio v The Queen (2016) 90 ALJR 963; [2016] HCA 32
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. Zlatan Popovic and Tevi Koloamatangi are both on trial for the murder of Dragan Sekuljica, who was shot dead in the early hours of the morning of 8 September 2007 in a nightclub in Wollongong. The Crown case is that Mr Popovic arranged for Mr Koloamatangi to shoot the deceased. The trial has proceeded before a jury since 7 August 2017. The two men were previously convicted of this offence following a trial in 2014 but a new trial was ordered by the Court of Criminal Appeal on 21 September 2016: Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202.

2. On 25 August 2017, the Crown made application under s 65(2)(c) and (d) of the Evidence Act 1995 (NSW) to adduce evidence contained in two statements made by Mr Popovic’s former wife, Emily Popovic, who is now deceased, in 2012. Both accused object to the tender of this material. The Crown did not seek to adduce this evidence at the first trial.

The Crown case

3. The Crown case is set out in R v Popovic; R v Koloamatangi (No 3) [2017] NSWSC 1110. It relies to a significant extent on the evidence of an “accomplice” witness who is known in these proceedings as Peter Taylor. He gave evidence in the trial over four days.

4. Mr Taylor was a friend of Mr Popovic at the time of the murder and worked on a casual basis in a pizza shop owned by Mr Popovic’s mother. In the period leading up to the murder Mr Popovic had said to him that there was a “war” and asked him whether he was “with him”. Mr Taylor informed Mr Popovic that he was. At about the same time he was present with Mr Popovic when another person expressed hostility towards “Dragan” and called him a “dog”.

5. Mr Taylor gave evidence that he saw Mr Popovic on the day that Dragan Sekuljica was murdered. Mr Popovic invited him to go to Kings Chinese Restaurant on Flinders Street in Wollongong for dinner. At the dinner were Zlatan Popovic and his wife, Tevi Koloamatangi and his girlfriend Emma, Zlatan’s cousin and another female. He described there being general conversation between everyone. Mr Taylor gave evidence that Mr Popovic and Mr Koloamatangi were “talking amongst themselves in a quite whispering” for about 20 minutes to half an hour and that Mr Popovic then spoke to him about giving Mr Koloamatangi and Emma a lift back to Sydney.

6. He drove Mr Koloamatangi and Emma back to Sydney and dropped Emma off at The Rocks. He and Mr Koloamatangi then returned to Wollongong, where they went to Mr Popovic’s apartment. Mr Taylor gave evidence that Mr Popovic had asked them to go there when they came back from Sydney. Mr Popovic and his wife were in the unit. She was asleep on the floor of the lounge room by the television, lying on a mattress and a few pillows. Mr Taylor and Mr Koloamatangi went into the kitchen area of the unit, where Mr Popovic and Mr Koloamatangi started to have a conversation. Mr Taylor overheard that they were “…planning to go see a person by the name of Dragan” and “commit a crime against him”. Mr Popovic told them to pick up “something” from “Jason”. Whilst they were in the kitchen, Mr Popovic’s wife woke up and went to bed.

7. The witness gave evidence of going to the home of Jason Hristovski and picking up a revolver contained in a rolled up bank bag and then going to his own home to pick up clothes for Mr Koloamatangi to wear to do the shooting. He stated that Zlatan Popovic called either him or Mr Koloamatangi to tell them that the deceased was at Splashes Nightclub. They did a couple of laps of Splashes and parked around the corner in the north car park. Mr Taylor pointed out bushes directly opposite Splashes where Mr Koloamatangi could wait for the deceased.

8. He gave evidence that waited in the car for an hour and a half to two hours before hearing two or three shots fired. Mr Koloamatangi ran back to the car within one or two minutes. Mr Taylor gave evidence that Mr Koloamatangi asked him to call Mr Popovic to get the money, which he did. He gave evidence that he thought his phone was off and that it was not a call from his phone. Mr Taylor dropped Mr Koloamatangi off at his home in Mascot.

9. CCTV footage shows that the shooting took place at about 3.01am. The Crown has tendered a table containing call charge records and reverse call charge records as part of its case. At 3:11 there is a telephone call from the phone service subscribed to Tevi Koloamatangi to that subscribed to Zlatan Popovic. This is the only call made to Mr Popovic after the shooting during the relevant time period.

The evidence of Emily Popovic

10. Emily Popovic made a notebook statement to police on 7 November 2007 in which she stated that on the night of 7 September 2007 she and her husband went to Collegians for dinner, hired some videos, went home and then stayed in all night. She said Mr Popovic received a telephone call the following day telling him about the shooting at Splashes. The Crown does not seek to lead evidence of this statement.

11. On 7 September 2012, she made further statement to police. The Crown seeks to tender the following passages from that statement:

11	“On the 7th of September, 2007 I was with Zlatan all evening and all night. We went out for diffner [sic] that night to a Chinese restaurant in North Wollongong with Zeljko, Zlatan’s cousin and his girlfriend.”
12	“The name of the Chinese Restaurant in [sic] “Kings Chinese Restaurant.””
13	“”DOC” and his girlfriend, Emma were also with us.”
16	“DOC’s real name is Tevi Koloamatangi. Doc is my husband’s friend and I met him through my husband.”
53	“I only remember two things about that night. The front door closing and also one phone call.”
54	“Firstly, the front door closing. I don't remember what time it was, but at the time I was lying on the floor watching the movie but had fallen asleep. I heard the front door close. I woke up and saw Zlatan closing the front door. I don't know what Zlatan was doing. I don't know if he left the house, or spoke to someone or was just checking that the door was locked. I had been watching the movie and zoned out. Zlatan got back. [sic] into bed with me and continued watching the movie.”
55	“Secondly, the phone call. I don't remember the time, but I was asleep in the lounge room and it was still dark outside. The television was still on and one of the movies was still playing. Zlatan was lying next to me, I don't know if he was asleep, but I had fallen asleep during the movie again. I don't know who called him and I don't know what was said. After this phone call Zlatan said to me, "Someone has just been shot at Splashes." I can't remember what I said. I was shocked. This is the only time I have received a phone call like this in the middle of the night. I remember thinking at the time, why would someone call Zlatan in the middle of the night to tell him this message, I assumed it must have been one of his friends who was out drinking that night.”

12. On 11 September 2012, she made a further statement to police. The Crown seeks to tender the following passages from that statement:

12	“Out to dinner on that evening at Kings Chinese Restaurant [sic] was Zlatan Popovic, Zeljko and his girlfriend, DOC and his girlfriend Emma, [Peter Taylor] and myself.”
14	“After dinner that evening I recall Zlatan and DOC standing out the front of the restaurant talking, this was away from Emma and me; I’m not sure where [Peter Taylor] was standing. I think they were there talking for about five minutes, I not sure what they were talking about.”
15	“I had been on the floor watching a movie and had fallen asleep. I did hear the door open and then looked up and saw Zlatan standing in the doorway with the door open. The door was open just enough for someone to walk through it, I would say it was half open. Just outside the front door I could see DOC standing in the dark in front of Zlatan, I could not see what DOC was wearing I could only see his face. I know this was DOC as we had just been out to dinner with him earlier that night. When I looked up Zlatan turned looked at me saying he would be back in a minute. Zlatan then walked out the front of the unit closing the door behind him. After a couple of minutes Zlatan came back inside, I think he told me that he just had to go outside for a minute, he did not tell me who he was talking to or what he was doing. This incident with DOC and Zlatan at the front door occurred after we had returned home from being out to dinner at Kings Chinese restaurant, and before Zlatan got the phone call about someone being shot at Splashes.”
20	“At that time I had no cause to talk with Jason and I can say that I did not call him either on the 7th or 8th September 2007. The only other person who had access to my phone at this time was my husband Zlatan Popovic”
21	“Zlatan Popovic at times would often use my mobile phone.”
23	“On 11th September, 2012 Detective Ritchie showed me a document with the details of a vodaphone [sic] mobile phone number 0404961870. I can confirm this previous mobile phone number I was using.”

Evidence on the voir dire

13. In addition to the statements of Emily Popovic, the Crown tendered various police investigator’s notes and police statements outlining police contact with Emily Popovic from 5 September 2012 until her death on 16 September 2012.

14. Emily Martin married the accused Mr Popovic on 28 October 2007 and took his name. She was 26 years of age. She and Mr Popovic subsequently had two children.

15. On 2 January 2012, the couple separated. The explanation for this is contained in her statement of 7 September 2012 in these terms:

“On 2nd January 2012 Zlatan and I broke up. He told me he had a fight with his mum. Zlatan and I were also fighting at the time. He told me he was sick of my whinging [sic]. The night before he left he said he wanted to hit me. He didn’t hit me but said he had to leave because he wanted to.”

16. On 5 September 2012, Detectives Ritchie and Sanvitale made contact with Emily Popovic. She then made two signed statements with police on 7 and 11 September 2012.

17. In her statement of 7 September 2012, she stated:

“The current situation is that I am living with my mum and I am raising my two children. I am trying to rebuild my life without Zlatan. We are officially married because we can not [sic] get divorced until a period of 12 months and 1 day. I plan to go back to my maiden name of Martin”

Zlatan is currently in Alice Springs. We still communicate to be honest I don’t know where my future with Zlatan is at the moment, but we have children and I need to keep the communication open for our children.”

18. In her statement of 11 September 2012 she stated:

“At the time of making a statement to Detective Sergeant CHAMBERS I held back on some information out of fear. I fear for my safety and the safety of my children and that of my extended family including my mother and brothers. I know that Zaltan [sic] has a criminal history and many of his friends are involved in crime. I have often overheard Zlatan and his friends talking about people that give information or talk to the police, they call these people dogs and they make jokes about what they do with dogs and how dogs need to be put down.”

19. On 12 September 2012, Emily Popovic saw a solicitor in Nowra. She was very concerned and told him that her life was in danger. The solicitor told police that Emily Popovic was afraid “…of retribution for getting involved in the investigation.” That solicitor contacted police to confirm she was a witness rather than a suspect. Detective Senior Constable Ritchie then tried to make contact with her a number of times that day.

20. On 13 September 2012, Detective Senior Constable Ritchie spoke with Emily Popovic. She was concerned about making the initial false statement. Police told her she was not in trouble and that she was a witness and not a suspect.

21. On 14 September 2012, Detective Senior Constable Ritchie had another long conversation with Emily Popovic. She was fearful about having initially made false statements. She was described as being “fearful/paranoid”. She told police that she would not be telling her husband that she had made the statements.

22. On 15 September 2012, Detective Senior Constable Ritchie spoke to Emily Popovic again. She stated that she could not really talk at that time but that she would call back later.

23. On 15 September 2012, Emily Popovic telephoned general duties police. Constable Andrew Schmidt arrived at her home some time before 1pm. He described Emily Popovic as appearing “…very nervous, anxious and extremely paranoid.” She was described as having trouble “stringing words together” and as saying “…a couple of words every 10 second or so.” Her mother was with her and was described as being “no different” and “…just as nervous and paranoid.” He described Emily Popovic’s mother as pacing, chain smoking and having trouble stringing sentences together.

24. Constable Schmidt was finally able to ascertain who Emily Popovic was and that “…she believed that her husband knew she was speaking to police (Homicide detectives).” She was observed to be “petrified” of her ex-husband. He formed the view that the stress and anxiety of being a witness in a murder investigation was making her extremely paranoid. He did not believe that she suffered from any mental health issues.

25. At 9.14pm that night, Emily Popovic telephoned Triple-0 to report that there were five males with guns at her property. Police attended but could not locate anyone.

26. At around 10:20am on 16 September 2012, she went into the bathroom to have a shower. She was in the bathroom for over 30 minutes. Her mother went in to check on her and found that she had cut her throat and her arms. She was already dead.

The hearsay rule

27. Section 59 of the Evidence Act 1995 (NSW) relevantly provides:

“59 The hearsay rule – exclusion of hearsay evidence

(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

(2) Such a fact is in this Part referred to as an asserted fact.

28. Section 65 of the Evidence Act relevantly provides:

“65 Exception: criminal proceedings if maker not available

(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation:

(a) was made under a duty to make that representation or to make representations of that kind, or

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or

(c) was made in circumstances that make it highly probable that the representation is reliable, or

(d) was:

(i) against the interests of the person who made it at the time it was made, and

(ii) made in circumstances that make it likely that the representation is reliable.

…

(7) Without limiting subsection (2) (d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends:

(a) to damage the person’s reputation, or

(b) to show that the person has committed an offence for which the person has not been convicted, or

(c) to show that the person is liable in an action for damages.”

29. Clause 4(1)(a) of the Dictionary to the Evidence Act provides that a person is “unavailable” within the meaning of s 65 if they are dead.

Submissions on behalf of the Crown

30. The Crown Prosecutor’s primary submission was that the evidence satisfied the terms of s 65(2)(d) of the Evidence Act. He noted that s 65(7) of the Act provides for an inclusive definition of when a representation is taken to be against the interests of the person who made it by setting out three circumstances in which representations are deemed to be against the interests of the person making them. He submitted that the statements made by Emily Popovic are in a similar category.

31. It was submitted that the representations made by Emily Popovic contained in the police statements made by her were against her interest because of the effect that they would have upon her relationship with the accused Mr Popovic and also because she feared reprisals generally by being referred to as a “dog” for making the statements to police. That portion of her second statement extracted above at [18] was relied upon in this regard.

32. It was conceded that not every person who makes a police statement in relation to a criminal matter does so against their own interest. The Crown Prosecutor used the analogy of a prison informer who makes a statement implicating an accused person. The statement is made “against interest” because of the potential risk to their safety of informing on another prisoner. It was submitted that that was a far greater disadvantage than any of the matters referred to in sub-s (7).

33. Turning to the question of why the circumstances in which the statements were made make it “likely” they are reliable a number of matters were relied upon. First, it was submitted that she initiated the contact with police to provide the further information. Second, Emily Popovic explains in each statement why it was that she did not previously provide a full account to police. That is, it is not that her statements are untrue; simply that details were omitted from them. Third, in the statement she made in November 2007 she explains that she was reminded of the date by her husband and independently was able to recall it back in 2007. It was a date of some significance in that a person she knew was shot in a nightclub, which was an unusual occurrence not easily forgotten. There was no difference in the circumstances in which she made the four separate representations sought to be adduced by the Crown. All of them were made in the same circumstances.

34. As an alternative argument, the Crown Prosecutor relied upon s 65(2)(c). He conceded that it is a difficult test to establish that it is “highly probable”, but submitted that the surrounding circumstances, including the fact that she had given a reason for not providing full information, the risk in which she placed herself, the status of her relationship, and the fact that she had two young children with the accused whom she wanted to have a continuing relationship with their father were all relevant circumstances in this regard.

35. The Crown Prosecutor did not concede that the evidence relied upon suggested that Emily Popovic may have had mental health issues. There is a distinction to be drawn between being very frightened on rational grounds and being delusional.

30. The Crown submitted that, notwithstanding the fact that she chose to take her own life on 16 September 2012, there is nothing to suggest that at the time of making the representations contained in the two statements she was anything other than rational and of sound mind.

Submissions on behalf of the accused

37. Mr Brasch provided written and oral submissions in support of his opposition to the admission of the evidence. Counsel for Mr Koloamatangi adopted Mr Brasch’s submissions in their totality.

38. The primary submission of Mr Brasch was that, although it may have been against Emily Popovic’s interest generally to assist police in this matter, that is not what is contemplated by the statutory language of s 65(2)(d) of the Act. It was submitted that the Crown had not addressed the specific representations and how, when looked at individually, each of them was against Emily Popovic’s interests at the time that it was made. It was submitted that it is not the correct approach to look at the circumstances in which the representations were made, rather than the text of the representations themselves, in order to assess whether they were made against the interest of the person who made them. The correct approach is to look at the terms of each representation in order to determine whether each of them is one that is made against the maker’s interest.

39. It was further submitted that the material relied upon by the Crown suggests that, to the extent that Emily Popovic held any fears of her husband, they arose from a realisation on her part of his past criminal activity rather than the fact of her having made statements to police.

40. Turning to the question of the circumstances in which the representations were made, it was submitted that those circumstances make it less rather than more likely that the representations were reliable. It was submitted that reliance upon Emily Popovic’s fear as a circumstance rendering the representations likely to be reliable is not the appropriate test; the test focuses on the circumstances in which the representations were made and not the general reliability of the person who made them.

41. It was further submitted that the fact that the maker of a representation may be in fear of a person about whom the representation is made is not a circumstance that makes it either “highly probable” or “likely” that the representation is reliable. In fact it would often suggest the opposite. As for the Crown submission that there was nothing to suggest that Emily Popovic was not of rational and sound mind when she made the relevant representations, it was submitted that the absence of any evidence concerning her state of mind in the period from 5 September to 11 September 2012 cannot be relied upon to support an assertion that she was in fact of sound mind in that period. There is no explanation for the Crown’s failure to call evidence from police as to her state of mind during that period in circumstances when such material is clearly available.

42. Mr Brasch submitted that what is clear from the evidence adduced on the voir dire is that Emily Popovic was extremely emotionally distressed from 12 September 2012 until her death four days later. The coroner found that she had been experiencing paranoia both in the lead up to her death and at the time of it. Although she told Constable Schmidt that she believed that her husband knew that she was speaking to police, the investigator’s notes of Detective Senior Constable Ritchie make it clear that she had not told him of this. It is unlikely that the extreme state of distress and paranoia exhibited from 12 September 2012 arose only after 11 September 2012. It is more likely that it was something that would have been brought on by police attendance on her on 5 September 2012.

43. Even if the Court were satisfied that the terms of s 65(2)(c) or (d) had been satisfied, it was submitted that the evidence should be excluded under s 137 of the Evidence Act. If the representations were to be admitted, both accused have material available to attack the veracity of the representations but to do so would require them to elaborate on the fears held by Emily Popovic and this would be highly prejudicial to the case of each of the accused.

Consideration

44. The scope of s 65(d) of the Evidence Act was recently considered by the High Court in Sio v The Queen (2016) 90 ALJR 963; [2016] HCA 32. As the Court (French CJ, Bell, Gageler, Keane and Gordon JJ) observed at [60]:

“It is no light thing to admit a hearsay statement inculpating an accused. Where s 65 is successfully invoked by the prosecution, the accused will have no opportunity to cross-examine the maker of the statement with a view to undermining the inculpatory assertion.”

45. The decision in Sio v The Queen concerned the admissibility of representations made in an Electronically Recorded Interview with a Suspected Person (“ERISP”) in the trial of a co-accused.

46. The High Court observed in relation to s 65 generally (at [55] – [57]):

“It is evident that ss 62 and 65(1) are concerned to relax the exclusionary effect of the hearsay rule in relation to an assertion of a fact by a person who had personal knowledge of that fact. These provisions proceed on the assumption that the asserted fact is relevant to the case of the party seeking to adduce evidence of the representation asserting the fact. Together with the provisions of s 65(2) other than par (d), they direct attention to the particular representation which asserts the relevant fact.

…

It may also be noted here that s 65(2)(b) makes it clear that when the provisions with which it is collocated speak of "a representation", they are speaking of the particular representation that asserts a relevant fact sought to be proved. That this is so is confirmed by s 65(2)(d)(i), which requires that the representation tendered against the other party is able to be seen to be against the interest of the maker of the statement.

It can be seen that the application of s 65(2) proceeds upon the assumption that a party is seeking to prove a particular fact relevant to an issue in the case. It then requires the identification of the particular representation to be adduced in evidence as proof of that fact. The circumstances in which that representation was made may then be considered in order to determine whether the conditions of admissibility are met. This process must be observed in relation to each relevant fact sought to be proved by tendering evidence under s 65.”

47. The High Court went on to observe at [63] – [64] (footnotes omitted):

“Section 65 gives effect to the view that the circumstances of the making of an out of court statement conveying an assertion of a relevant fact may be such as to indicate that the representation is likely to be reliable – and the asserted fact likely to be true – notwithstanding the hearsay character of the evidence. The section operates on the footing that the circumstances in which the representation was made may be seen to be such that "the dangers which the rule seeks to prevent are not present or are negligible in the circumstances”. In such a case, "there is no basis for a strict application of the rule."

Section 65(2)(d)(ii) requires a trial judge to be positively satisfied that the representation which is tendered was made in circumstances that make it likely to be reliable notwithstanding its hearsay character. One category of circumstances that has been recognised as warranting a relaxation of the exclusionary effect of the hearsay rule was identified in Wigmore on Evidence as those circumstances that "are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed"; in other words, circumstances that of themselves tend to negative motive and opportunity of the declarant to lie.”

48. As for what may be taken into account when examining the circumstances in which a representation were made, the High Court observed at [69] – [72]:

“In R v Ambrosoli, Mason P, with whom Hulme and Simpson JJ agreed, while discussing s 65(2)(c) of the Evidence Act, said that the provision seeks to focus attention upon the circumstances of the making of the representation to determine the likelihood of its reliability, but that:

"evidence of events other than those of the making of the previous representation [can] throw light upon the circumstances of the making of that representation and its reliability as affected thereby."

That observation may be accepted. The focus of attention of a trial judge tasked with ruling upon the admissibility of a representation is directed by s 65(2)(d)(ii), not to the apparent truthfulness of the person making it, but to the objective circumstances in which it was made. The issue is whether the trial judge is affirmatively satisfied that, notwithstanding the hearsay character of the evidence, it is likely to be reliable evidence of the fact asserted.

When one focuses upon the particular representation which conveys the asserted relevant fact, it can be seen that the circumstances in which that representation was made may include other representations which form part of the context in which the relevant representation was made. A representation may be demonstrably unreliable because it is followed by a specific retraction of the assertion of the relevant fact. Statements made by the representor that are demonstrably or inherently incredible, fanciful or preposterous may be circumstances forming part of the context in which a relevant representation is made which tend against a positive evaluation of the likely reliability of that representation. But it is unnecessary to gloss further the statutory language. In particular, it is not profitable to seek to multiply examples of other circumstances which assist the trial judge to conclude that a representation is unlikely to be reliable. It is to risk being distracted from the task set by s 65(2)(d)(ii) to be overly concerned with what circumstances may properly be taken into account to determine the unreliability of a representation. The true concern of the provision is with the identification of circumstances which of themselves warrant the conclusion that the representation is reliable notwithstanding its hearsay character.

Section 65(2)(d)(ii) requires the making of an evaluation by the trial judge which positively satisfies the trial judge that the representation is likely to be reliable by reason of the circumstances in which it was made. As was noted in IMM v The Queen, s 65(2)(c) and (d) and s 85 provide "[t]he only occasion for a trial judge to consider the reliability of evidence, in connection with the admissibility of evidence". It is desirable to emphasise, however, that the whole point of s 65(2)(d)(ii) is that, where the circumstances in which the statement is made are likely to ensure, as a practical matter, that the asserted fact truly occurred, the fairness of the trial does not require a positive judgment by the tribunal of fact about the reliability of the maker of the statement. Attention is directed by the language of s 65(2)(d) to an assessment of the circumstances in which the statement was made to establish its likely reliability, rather than to a general assessment of whether or not it is likely that the representor is a reliable witness. This is precisely because the representor will not be a witness at the trial.”

49. With these principles in mind, I turn to consider the admissibility of the relevant representations by Emily Popovic. In doing so, the starting point is to ascertain whether the material is relevant. That is, if it were accepted, whether it could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding: s 55 of the Evidence Act.

50. Of the four representations sought to be adduced by the Crown, at least two are not matters that are in dispute in this trial. It is not in dispute as to who was at the dinner at Kings Chinese restaurant on the evening of 7 September 2007. Nor was it put to Mr Taylor in cross-examination that he did not visit Mr Popovic’s unit with Mr Koloamatangi at some time later that same evening. As for the telephone call made from Emily Popovic’s phone to Jason Hristovski, given its timing, it is open to the Crown to submit that an available inference arises that it was made by Mr Popovic, rather than Emily, in any event.

51. The high point of the proposed evidence of Emily Popovic is that she recalls Mr Popovic receiving a telephone call in the early hours of 8 September 2007 at a time when it was still dark and the movie was still playing. After Mr Popovic took the call, he told her that someone had been shot at Splashes. On its own, this representation would not appear necessarily to amount to inculpatory evidence against the accused. The evidence already adduced at the trial shows that there were a number of people at Splashes that night who were friends with Mr Popovic. The mere fact that somebody had telephoned him about the murder does not necessarily implicate him in the shooting in circumstances where he knew the deceased.

52. The reason that this part of Emily Popovic’s evidence has such significant probative value is that a schedule of telephone calls tendered at the trial (Exhibit O) includes a summary of all telephone calls made and received by Mr Popovic that morning. The only telephone call made to Mr Popovic at the relevant time that could have been the one described by Emily Popovic was from a mobile telephone registered to Mr Koloamatangi. Mr Taylor has given evidence that he used that phone to telephone Mr Popovic after the shooting to tell him that it had been done and requesting money for Mr Koloamatangi. In this way, the evidence as to what that call was about supports the evidence of Mr Taylor to a significant degree.

53. Although the representations are all clearly relevant, they offend the hearsay rule in s 59 of the Evidence Act and are all thus inadmissible unless they come within the terms of s 65 of the Evidence Act. As for s 65(1), there was no issue that Emily Popovic is unavailable to give evidence. Nor was issue taken that notice of the Crown’s intention to adduce this evidence at trial had been provided on 3 August 2017 in compliance with s 67 of the Evidence Act.

54. The Crown’s primary submission was that the representations are admissible because they were made against Emily Popovic’s interest within the meaning of s 65(2)(d)(i) of the Evidence Act and “made in circumstances that made it likely that the representation is reliable” within the meaning of s 65(2)(d)(ii).

55. What is meant by making a representation that is “against the interest” of the person who makes it is not defined in the Evidence Act. Rather, three examples are provided in s 65(7) of the Evidence Act as to what are deemed to be representations made against interest. It is to be accepted that the definition is inclusive rather than exclusive and that the circumstances in which a representation may be made against interest are not confined to those set out in sub-s (7). Despite this, focus on the three types of representations set out in sub-s (7) is informative. In each of the three examples deemed to fall within this definition the representation itself is directly against the interests of the person who made it. That is, the representation itself damages the person’s reputation, implicates them in the commission of an offence or shows that they are liable in an action for damages.

56. It was submitted by the Crown Prosecutor that representations made by Emily Popovic are similar to those in s 65(7) because she placed herself at risk of physical harm and also ran the risk of doing harm to her relationship. He relied upon the ejusdem generis rule in this regard. That rule provides that where there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified. As I understand the submission, it is that the representations made by Emily Popovic should be read as being of a similar kind to those in s 65(7). The difficulty with this submission is that such a comparison in fact highlights why her representations are not of the same character as the three examples in s 65(7).

57. All of the three circumstances in s 65(7), where it is deemed that the representations are made against the interest of the maker, involve representations that are directly against the interest of the maker. Unlike these three examples, the representations made by Emily Popovic are not themselves directly against her interests; only the fact of her making the statements to police per se is. To put this another way, it is not against the interests of Emily Popovic that her husband received a telephone call in the early hours of the morning on 8 September 2007. Nor is it against the interests of Emily Popovic that she went to a Chinese Restaurant the night before the shooting with a group of people that included both accused and Mr Taylor. Nor is it against the interests of Emily Popovic that Mr Koloamatangi visited the unit that she shared with Mr Popovic later that evening. Nor is it against the interests of Emily Popovic that she did not telephone Jason Hristovski that night.

58. I am satisfied that, in making the statements to police that she did on 7 and 11 September 2012, Emily Popovic may well have potentially harmed any future relationship that she had with her estranged husband. I am also satisfied that she may have put herself in fear of retribution from her husband. In this way, I am satisfied that it was against her interests to help police in the manner that she did. But that is not what the statutory language of s 65(2)(d)(i) is directed at. It is directed at the representations themselves having a quality of being against the maker’s interests. Although the argument advanced by the Crown that any representation made by her that implicates the accused is against her interest appears at first blush to be a sound one, it ultimately directs attention to the circumstances in which Emily Popovic came to make her police statements rather than to the nature of the representations themselves.

59. Although s 65(2)(d) has been judicially considered on a number of occasions, the provision is usually relied upon in circumstances where the Crown seeks to adduce evidence of representations that fall within s 65(7)(b). That is the situation that arose in Sio v The Queen, R v Suteski (2002) 56 NSWLR 182, R v Ambrosoli (2002) 55 NSWLR 603 and R v Williams (2000) 119 A Crim R 490. Counsel did not bring to the Court’s attention any decisions in which the sub-section has been relied upon in circumstances other than those set out in s 65(7) of the Evidence Act.

60. It is undoubtedly the case that the enactment of s 65 significantly extended the common law. However, I am not satisfied that the definition can be taken to extend to representations that at face value are not against the maker’s interests even though they may indirectly lead the maker to feel that she has made the representations against her own interest.

61. For these reasons, I am not satisfied that the Crown has established that the representations made to police by Emily Popovic concerning the night of 7 – 8 September 2007 were made against her interest within the meaning of s 65(2)(d)(i) of the Evidence Act. Having found that the representations were not made against interest, there is no need to go on to consider whether s 65(2)(d)(ii) has been established.

62. The Crown’s alternative submission, in the event that I was not satisfied that the representations had been made against Emily Popovic’s interest, was that they nonetheless fell within s 65(2)(c) of the Evidence Act in that they were made in circumstances that make it “highly probable” that the representations are reliable.

63. Prior to the decision of the High Court in Sio v The Queen, there was some uncertainty as to what assessing the “circumstances” in which a representation was made involved. The High Court has confirmed, in the passages cited above at [47], that in assessing the circumstances the court can have regard to events other than the making of the representations themselves. The focus is not on the apparent truthfulness of the representations, but on the objective circumstances in which they were made.

49. It was properly conceded by the Crown that the test as to whether it is “highly probable” that the representations are reliable is an onerous test. In Conway (2000) 98 FCR 204; [2000] FCA 461, the Full Court of the Federal Court observed (at 244 [146]):

“The requirement in s 65(2)(c) of the Act that it be "highly probable" that a representation be "reliable" in order to be admissible is an onerous one. It is easy to see why that should be so. Section 65(2)( c) has the potential to operate unfairly against an accused person. This particular exception to the hearsay rule was not recommended by either the Australian Law Reform Commission or the New South Wales Law Reform Commission. Treating "reliability" alone as the basis for admissibility, represents a radical departure from the principle that hearsay evidence, no matter how reliable it may appear to be, is inadmissible unless it falls within a recognised exception to the hearsay rule.”

65. I have had regard to all of the evidence, the principles derived from the authorities concerning s 65(2)(c) and the submissions of counsel and I am not satisfied that the Crown has established that the statements were made in circumstances that make it ”highly probable” that each of them is reliable for the following reasons.

66. First, they were made over five years after the event in question. It is to be accepted that just because representations are not contemporaneous does not mean they cannot be reliable. Sub-section s 65(2)(b) deals specifically with representations made “when” or “shortly after” the asserted fact occurred. The other sub-sections make no reference to the timing of the representations, which leads me to conclude that delay in making the relevant representations is not in and of itself fatal to its admissibility. Despite this, five years is a considerable amount of time in the context of a requirement that the circumstances make it “highly probable” that the representations are reliable.

67. Second, Emily Popovic changed the contents of her statements in circumstances where she had had a number of discussions with police during that time. For example, as between her two statements on 7 and 11 September 2012, she changed her version of whether Mr Taylor was at the dinner and whether anyone came to her house that night. Similarly her recollection of the telephone call has changed over time. I accept the Crown submission that the explanation for her gradual disclosure to police is consistent with her providing more information each time rather than retracting certain statements, but the fact remains that, for whatever reason, her version of events changed over time.

68. Third, I have had regard to the evidence of the mental state of Emily Popovic during this period. I have read the statements she gave to police on 7 and 11 September 2012 in some detail. They are signed by her. There is nothing on their face to suggest any incoherence in the representations that she makes therein. It is somewhat difficult to reconcile the coherence of those accounts with the descriptions of her by police in the period from 12 September until her death on 16 September 2012. It is of significance, however, that Constable Schmidt did not describe her as exhibiting any mental illness when he saw her on 15 September 2012.

69. I have had regard to all of this material and I am not satisfied that Emily Popovic was suffering from any delusions or mental illness as at the time she made her statements that would make them unreliable. It seems to me that a person can be pathologically frightened of something or someone without necessarily suffering from a mental illness. Although it is to be accepted that the coroner described her as paranoid, that does not necessarily mean that she was delusional. I have ultimately concluded, to the extent it is necessary for me to do so, that after making these statements to police Emily Popovic regretted doing so and became increasingly paranoid about the repercussions.

70. The High Court in Sio v The Queen cautioned (at [71]), albeit in the context of s 65(2)(d)(ii), against focussing on circumstances that might assist the trial judge to conclude that a representation is unlikely to be reliable rather than the true concern of the provision, which is the identification of circumstances that of themselves warrant the conclusion that the representation is reliable notwithstanding its hearsay character. In this regard, my focus is not on unreliability but on whether her mental state makes it highly probable that the representations are reliable.

71. I have also taken into account the circumstance that Emily Popovic made her police statements in which the relevant representations were made at some personal risk. That is, the fact that she made the statements knowing that Mr Popovic would consider her to be a “dog”. It was submitted on behalf of the Crown that this circumstance enhances the probability that the representations are reliable. Although this submission has some force, when considered in the context of the other circumstances, including the delay and the change in versions, it is not such as to satisfy the high test required by s 65(2)(c) of the Evidence Act.

72. I note that Mr Brasch relied upon the fact that the representations were made at a time when Emily Popovic was estranged from her husband as militating against reliability. The evidence on this issue was somewhat unsatisfactory. The descriptions of the state of the relationship made by Emily Popovic are extracted above at [15] and [17]. I accept that as a general rule it is not to be presumed that representations made by an estranged partner who may have an axe to grind are inherently reliable. There may well be feelings of ill will and a desire for revenge on the part of the party who feels wronged in the separation. However, it seems to me that this factor is relevant to the question of the apparent truthfulness of the representations rather than their reliability which is not part of my role in this consideration: Siov The Queen at [70].

73. Finally, my role in ascertaining the admissibility of these representations is not directed at whether they are in fact reliable; it is directed at whether the circumstances in which they were made render it “highly probable” that they are reliable.

74. Having had regard to the circumstances in which the representations were made, although I am satisfied that it is “likely” that those circumstances render them reliable, I am not satisfied that those circumstances render it “highly probable” that they are reliable.

75. I am thus not satisfied that the evidence falls within either of sub-sections (c) or (d) of s 65(2) of the Evidence Act.

Decision last updated: 15 September 2017