Popovic v R

Court of Criminal Appeal (NSW)|2017-05-17|Before: Hoeben CJ, Rothman J, Price J, Harrison J, O'Keefe J

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 in custody, tried after a plea of not guilty and on 24 May 2014 convicted along with the three co-offenders. On 29 May 2014, the applicant was sentenced to imprisonment for a term of 34 years, with a non-parole period of 26 years.

Facts alleged in offending

The murder of the victim is alleged by the Crown to have occurred as a joint criminal enterprise consisting of the applicant and others as a result of a falling out between the instigator of the joint criminal enterprise, Mr B, with the victim. The Crown alleges that each of the co-accused were party to the joint criminal enterprise to kill the victim and involved themselves in the following way: Mr K was the gunman; the applicant arranged the murder; Mr H supplied the gun; and Mr B acted as the lookout at "Splashes" on the night of the murder.
Mr B had been in gaol and was released on 29 August 2007. On 31 August 2007, Mr B and his son met with the victim at the North Wollongong Hotel, where there was a heated discussion caught on CCTV between Mr B and the victim. The police allege that Mr H was inside and Mr K and the applicant were waiting outside in a vehicle.
A phone call between the victim and the applicant apparently demonstrated that the victim was concerned that the applicant was getting too close to Mr B and his son. On 6 September 2007, the applicant, Mr K and Peter Taylor attended a meeting at the Collegians Club in Wollongong where the plan to murder the victim is said to have been reached and where an exchange of money occurred.
The applicant was the leader of a Serbian gang in the Illawarra area at the time. According to the Crown case, the applicant recruited Mr K as the shooter and Peter Taylor as the driver.
Details of meetings and telephone calls are outlined within the Amended Crown Case Statement and the Crown alleges that the plans for the murder of the victim were finalised in those telephone calls and meetings, including a meeting at a Chinese Restaurant in North Wollongong on the evening of 7 September 2007.
The Crown case, relying largely on the evidence of Peter Taylor, following the granting of an indemnity, is that late at night on 7 September 2007, at the request of the applicant, Peter Taylor and Mr K obtained a revolver. In the early hours of 8 September 2007, Peter Taylor drove Mr K to his home in Corrimal where Peter Taylor provided clothing.
At 11:27pm on 7 September 2007, Mr B attended Splashes nightclub. Approximately 1 hour later, at 12:30am on 8 September 2007, the victim attended Splashes nightclub with friends. The Crown relies on call charge records to show regular contact between the applicant and Peter Taylor up until the time of the shooting.
According to other patrons and staff, during the night, the victim and Mr B were seen to be both socialising and arguing. At approximately 3:00am on 8 September 2012, the victim left Splashes nightclub with Mr B and another friend. The CCTV captures footage of the victim walking towards the taxi and being shot by a man wearing a balaclava, a hooded jumper and baggy clothes. The Crown alleged that the clothes were those supplied by Peter Taylor to Mr K. The person doing the shooting and shown on the CCTV has a build that is consistent with Peter Taylor's evidence that it was Mr K who shot the victim.
Mr K ran from behind the bushes on the eastern side of Cliff Road and shot the victim twice with a revolver, although not fatally. The victim ran back into the nightclub.
Mr K ran into the nightclub and shot at the security guard giving rise to the other charge. The bullet aimed at the security guard missed vital organs. Mr K fired three further shots towards the victim, one of which was at close range, into the back of his head, and the victim died at the scene. Mr K then ran from the nightclub.
The Crown case is that Peter Taylor was waiting in a nearby car for Mr K. Peter Taylor drove Mr K to Sydney where Mr K said to him: "yeah, I got him outside and he ran inside and fell down, I ran up and gave him one in the back of the head just to make sure."
Peter Taylor collected money from the applicant following the shooting on at least three occasions. The money was passed on to Mr K as payment for the murder, according, once more, to the Crown case. Peter Taylor collected a total of $20,000 (or just over).
For some time, no person was charged due to the lack of sufficient information or evidence. However, in 2012, Peter Taylor made a number of induced statements in which his role in the shooting of the victim is outlined and in which he nominated the applicant as playing a significant role.
The principal Crown witnesses are two persons who have been granted indemnities from prosecution in return for the giving of evidence at trial by way of an induced statement. Those witnesses are Peter Taylor and Johnny Radz.
As earlier stated the applicant has been charged that on or about 8 September 2007 he did murder the victim. .

Role of the Court

Notwithstanding that one of the jurisdictional bases on which this Court may exercise jurisdiction to grant bail is the refusal of bail by a single judge of the Supreme Court and that is a basis upon which this release application has been filed, the Court, as presently constituted, does not sit on appeal from the single judge of the Supreme Court. The application is dealt with de novo.
As such, error, if any, in the court below is irrelevant. The Court must deal with the matter in accordance with the Bail Act, including, given the nature of the charges, the requirement on the applicant to show cause as to why his continued incarceration is not justified and also bearing in mind the provisions of ss 17 and 18 of the Bail Act and the criteria there prescribed.
Because of the nature of the charges that the applicant faces, s 16A of the Bail Act requires that the applicant satisfy the Court that his detention is not justified. In the absence of showing cause, s 16A of the Bail Act requires that the Court must refuse bail.
While s 18 sets out the criteria that are necessary for a court (or any bail authority) to consider in the assessment of bail, those criteria are particulars of the four "bail concerns" to which s 17(2) of the Bail Act refers.
In dealing with whether an applicant has shown cause, a court or bail authority may consider matters that are required to be considered under s 18 of the Bail Act, but may also consider other circumstances. In this case the major reasons on which the applicant relies to show cause include the weakness of the Crown case and the time that will have been spent on remand awaiting trial and the result of the trial.

Applicant's Criminal History

As is usual in a bail application before the Supreme Court or this Court, the Crown has provided a bail report, setting out the criminal history of the applicant. While these reasons for judgment have earlier recited some of the criminal history of the applicant, being the earlier sentence for manslaughter and malicious infliction of grievous bodily harm, the applicant has a criminal history that goes beyond those charges.
The applicant's criminal history includes the unlawful use of a motor vehicle, a number of assault charges, the possession of prohibited weapons and the possession of a shortened firearm, driving whilst disqualified, goods in personal custody reasonably suspected of being stolen, other counts of malicious infliction of grievous bodily harm with intent, malicious wounding, other counts of possession of a shortened firearm (not pistol), infliction of grievous bodily harm by negligent act, possession of an unauthorised firearm and use of an unauthorised firearm. Some of the charges that the applicant faced were not the subject of trial, because they were backup charges for other matters.
Lastly, even though the applicant has spent significant periods in prison, his criminal history cannot be said to be helpful to his application.

Crown Case

These reasons for judgment have already summarised the Crown case. The Crown case depends fundamentally upon the evidence of Peter Taylor, who will be giving evidence under an induced statement and was concerned in the criminal conduct with which the applicant is charged. As a consequence, the Court, at trial, will be required to warn the jury (or, if a judge alone trial, itself) of the experience of judges as to the possible unreliability of the evidence.
Other evidence will be adduced, but, at its core, much of the Crown case depends upon induced statements or statements that, it will be argued, are unreliable.
During the course of the judgment of this Court on appeal from the conviction for the charges for which the applicant will be re-tried, the Court made some comments about the reliability of the evidence on which the Crown relies. However, it is not the Court, or a judicial officer, that determines reliability at a re-trial. Further, those comments related to evidence against co-accused and do not necessarily extend to evidence against the applicant.
Moreover, different judicial officers will have a different view of the reliability of such evidence. Much will depend upon the demeanour of the witness and whether Peter Taylor (and other witnesses) are frank and honest and perceived to be. Fundamentally, the determination of whether such evidence is believed or not is a matter in which a jury has a significant advantage, which should not be underestimated in appeal proceedings.
While the Crown case rests upon those witnesses being believed, that is not unusual. Nor does it render the Crown case weak. Certainly not so weak as to satisfy the Court, of itself, that the continued detention of the applicant is not justified.

Delay

During the course of the hearing of the release application, much attention was given to the provisions of s 18(1)(h) of the Bail Act. That provision prescribes a criterion in the determination of a release application, being "the length of time the accused person is likely to spend in custody if bail is refused".
Submissions on each side of the record questioned whether "the length of time" was the length of time after the bail decision was made or included the time in which the accused was on remand prior to the bail decision and, even more relevantly, serving a sentence that was ultimately overturned.
It is unnecessary to determine finally whether the length of time to which s 18(1)(h) refers relates only to the time after the bail decision. Nevertheless, the paragraph refers to a time period which is calculated, bearing in mind the possibility that bail will be refused. If bail were to have been granted, the length of time the accused person spent in custody would remain the same. If bail were refused, as it was, then the period spent in custody will increase by the period between the bail refusal and the time when a verdict is delivered.
It seems that the length of time to which s 18(1)(h) refers is the whole of the time the accused person will have spent in custody pending the verdict, but the only difference the bail decision will make is that if bail were refused the particular applicant will spend a longer period in prison than has already been spent. In this case, bail having been refused, the applicant is to be put in the charge of a jury on, or immediately after, 31 July 2017, some 10½ weeks after the bail application was heard.
Nevertheless, the applicant was arrested on 12 September 2012 and has been in custody ever since, albeit due to a trial, conviction and sentence that was later quashed. Further, even though the Court's quashing of the conviction occurred on 21 September 2016, it was not until much later that a release application was made to the Supreme Court.

Other Factors on Show Cause and Unacceptability of Risk

The evidence adduced at the hearing before the Court includes a statement of Johnny Radz and recorded conversations. The recorded conversations occurred shortly after the applicant's incarceration on these charges. They include a reference to the detectives and other police officers during which the applicant accused the police of being the cause of his former partner's suicide, by seeking from her a statement against the applicant. The applicant was then married to his former partner (Ms E) and, at that stage, they had separated, but not divorced.
In the course of the recorded telephone conversation, after seeking and obtaining identification of the detectives, the applicant makes clear, in an expletive ridden threat, that he will kill them: "fuck this country"; "they will pay for that; the fucking police; they'll see what I can do".
In a later call the applicant makes clear that he is unconcerned about the consequences; and he repeats the threats, in short form.
The applicant, at the hearing on the release application, submitted that these were empty threats to worry the police and not intended to be taken seriously, in part, because they occurred almost immediately after being incarcerated at an emotional time, and shortly after the death of his former partner.
The difficulty with the foregoing submission on behalf of the applicant is that the applicant repeated these threats, in more detail and seemingly more callously, in a conversation with Johnny Radz in April 2013, some seven months after incarceration. In that conversation, the applicant is alleged to have said: "Those fucking copper dogs [then named them]"; And on being asked what the problem was, replied: "Cause [sic] they kept harassing her and made her write a statement on me, so because of all her stress of getting harassed and writing that statement, it put her in a great deal of stress, she couldn't handle it and killed herself. They fucking killed her mate, I am gonna kill those police who harassed her and drove her to her death". Johnny Radz said: "Listen man, I know you're upset but their [sic] police. What are you gonna do? Just go killing police, you know you are gonna get knocked". The applicant said: "I don't give a fuck, I've got nothing to lose". The conversation continued in which the applicant made clear that he was not worried about his children as they were in the care of his former partner's mother and that a course such as the one he was proposing would make him happy and it would "set an example to the public, by knocking these police dogs and letting the public know that if I can do it, youse can do it. By me doing this, it will show the public the police can't get away with harassing people like [Ms E]".

Bail Concerns

As earlier stated, s 17(2) prescribes bail concerns, being concerns that an applicant, if the applicant were released from custody, would fail to appear; commit a serious offence; endanger the safety of victims, individuals or the community; or interfere with witnesses or evidence. In many respects, the prescribed considerations in s 18(1) are particulars of, and an expansion of, the concerns in s 17(2) of the Bail Act.
Nevertheless, the Court, being a bail authority, must, before making a bail decision, assess any bail concerns. In light of the evidence of the threats to police and the lack of concern as to the consequences, two fundamental issues arise.
First, given these comments, no authority, including this Court, could be satisfied that the applicant, if released on bail, would not endanger the safety of the community, including the police, or interfere with witnesses, including officers in charge of the investigation.
Secondly, given the statements of the applicant as to his disregard for the consequences of conduct as serious as murder of the police in charge of the investigation against him and given he is already charged with murder, how could any bail authority, including this Court, be satisfied that the applicant would adhere to any conditions it would impose upon him.
In light of that evidence and the seriousness of the offences charged, together with the seriousness of the threats made to the community as a result of the investigation, the applicant has failed to show cause as to why his continued detention is not justified and the Court must refuse bail. Further, even if the applicant had shown cause, given the nature of the bail concerns to which these reasons have earlier referred, bail would be refused.
It is for the foregoing reasons that bail was refused on 17 May 2017.

Amendments 08 February 2018 - Pseudonym Update - restriction lifted DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 February 2018

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